The New York Court of Appeals recently resolved a split among the departments in the Appellate Division concerning primary assumption of risk and confined application of the doctrine to athletic and recreational activities.
Assumption of risk means, in the most basic sense, that the plaintiff “has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”1 Traditionally, the doctrine served as an absolute bar to a plaintiff’s negligence action. This common law rule was abrogated by enactment of CPLR §1411, the comparative fault statute.
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