Many of us recall learning about the assumption of risk doctrine in law school, while others learned about it in practice. Whether in New York state or federal courts applying New York law, the doctrine today is limited to “athletic and recreational activities,” and that limitation, as Judge Benjamin Cardozo explained in Murphy v. Steeplechase Amusement, 250 NY 479, 482-483 (1929), “is based on the premise that ‘one who takes part in … a sport accepts the dangers that inhere in it so far as they are obvious and necessary.’”

A Brief History of the Assumption of Risk Doctrine

What many of may not recall is that the New York State Legislature essentially abolished the assumption of risk doctrine when New York adopted a comparative fault regime in 1975, eliminating the bar to recovery which had provided that a plaintiff in a personal injury or wrongful death action was not entitled to any recovery where the plaintiff or decedent was found to be at least 1% liable. The change which took effect Sept. 1, 1975, and applied to actions commenced on or after the effective date, and was codified as CPLR 1411:

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