New York’s appellate courts have issued a number of decisions addressing the vitality of the "primary assumption of risk defense," a doctrine that has been under fire in tort litigation since the landmark case of Morgan v. State of New York1 introduced it in 1997. In Morgan, the Court of Appeals held that participants in sporting or recreational activities assume commonly appreciated risks which are inherent in the sport or activity and flow from participation. They do not assume the risk of intentional conduct, and the defense does not apply when the dangers or risks of the sport are concealed or unreasonably increased.
Applications of the Doctrine
Because application of primary assumption of risk negates or satisfies a defendant’s duty and is a complete defense in tort actions, the parameters of the doctrine have been hotly contested in a number of cases involving a variety of activities.
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