Liability in personal injury actions in New York is generally measured by assessing the comparative culpability of plaintiffs and defendants pursuant to CPLR §1411. This provision eliminated contributory negligence and assumption of the risk as absolute bars to recovery in most negligence cases. It provides:

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

The duty of care and allocation of responsibility between participants in sporting activities and the proprietors of sports facilities or sponsors of sporting activities are generally governed by the same principles of comparative negligence. However, the doctrine of “primary assumption of the risk” has remained as a complete bar to liability under certain circumstances. Traditionally, certain sporting and recreational activities, such as horseback riding and skiing, have been found to be so dangerous that there may be no duty of care. It is presumed that participants voluntarily assume and consent to the commonly appreciated risks inherent in the nature of the activity.1 The doctrine is directed to such activities where the risks are so intrinsic that they cannot be eliminated. The policy underlying this tort rule is to facilitate free and vigorous participation in athletic activities.2

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