Despite our longstanding familiarity as practitioners of New York law with the doctrines of comparative negligence and assumption of the risk, the parameters of the doctrine are still being fine-tuned by the New York Court of Appeals. In the 2009-2010 term, the New York Court of Appeals addressed three cases that demonstrate the tension between the principles that underlie comparative negligence on the one hand and the defense of assumption of the risk on the other, and which parties are—or are not—entitled to invoke these doctrines.
In Trupia v. Lake George Central School District,1 the Court of Appeals clarified the century-old doctrine of assumption of the risk and addressed just how far this doctrine should extend. In Trupia, a minor plaintiff was seriously injured at defendants’ summer camp when he slid down a banister and fell. Plaintiff sought to recover upon a theory of negligent supervision, alleging that the plaintiff was injured while unsupervised at the camp. In response, defendants sought to amend their answer to allege that, based on plaintiff’s prior injuries from that activity, the minor-plaintiff assumed the risk of sliding down the banister.2
