assumption of the risk doctrine in New York

2024"The doctrine of primary assumption of the risk provides that by engaging in a sport [*2]or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Kirkland v Hall , 38 AD3d 497, 498 [internal quotation marks omitted]; see Morgan v State of New York , 90 NY2d 471, 484 ).

2023Under the doctrine of primary assumption of the risk, a voluntary participant in a sporting or recreational activity "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the . . . [activity] generally and flow from such participation" ( Morgan v State of New York , 90 NY2d 471, 484 ; see Leslie v Splish Splash at Adventureland , 1 AD3d 320, 321 ).

2023In reaching this determination, the Court explained that the assumption of the risk doctrine “requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk,” which “is not to be determined in a vacuum” (id. at 278 [cleaned up]). “[R]ather,” the Court continued, that risk must be “assessed against the background of the skill and experience of the particular plaintiff and in that assessment a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport” (id. [cleaned up]).5 In adopti

2018The assumption of the risk doctrine is a complete bar to recovery where a participant in a sporting or recreational activity is injured as a result of a risk inherent in that activity ( see Turcotte v Fell , 68 NY2d 432, 439 [1986]).

2024In any event, "The doctrine of primary assumption of the risk, which encompasses activities such as athletic competition, does not apply ( see generally Custodi v Town of Amherst , 20 NY3d 83, 87 [2012]), nor does implied assumption of the risk apply" ( Webb v Scharf , 191 AD3d 1353, 1355 [4th Dept 2021]; see supra at 3 n 2).

2021The doctrine of primary assumption of the risk, which encompasses activities such as athletic competition, does not apply ( see generally Custodi v Town of Amherst , 20 NY3d 83, 87 [2012]), nor does implied assumption of the risk apply.

2014To the extent that Supreme Court questioned whether the doctrine of primary assumption of the risk could apply where, as here, the injured plaintiff was acting in the course of her employment at the time that the accident occurred, we note that the record is not sufficiently developed to permit consideration of whether plaintiff was operating under an “inherent compulsion” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658-659 [1989]) at the time she was injured. 3 .

2011The policy underlying the doctrine of primary assumption of the risk is “to facilitate free and vigorous participation in athletic activities” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]; see Anand v Kapoor, 61 AD3d 787 , 792 [2009], affd 15 NY3d 946 [2010]).

2022"The doctrine of primary assumption of the risk, however, will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased" ( Ribaudo v La Salle Inst. , 45 AD3d 556, 557 [2d Dept 2007], lv denied 10 NY3d 717 [2008]; see Morgan , 90 NY2d at 485 ).

2020"The doctrine of primary assumption of the risk, however, will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased" ( Ribaudo v La Salle Inst. , 45 AD3d 556, 557 [2d Dept 2007], lv denied 10 NY3d 717 [2008]).

2012School Dish ( 14 NY3d 392 , 396 n [2010]), argues that the assumption of the risk doctrine should not be applied because he did not “freely and knowingly consentí ]” to the risks of playing basketball on the outdoor court, as that was the only recreational activity available to him.

2012School Dish ( 14 NY3d 392 , 396 n [2010]), argues that the assumption of the risk doctrine should not be applied because he did not “freely and knowingly consentí ]” to the risks of playing basketball on the outdoor court, as that was the only recreational activity available to him.

2024Dist. , 126 AD3d 1306 , 1308 [4th Dept 2015] [internal quotation marks omitted]). " '[T]he assumption [of the risk] doctrine applies to any facet of the activity inherent in it' " ( id. , quoting Maddox v City of New York , 66 NY2d 270, 277 [1985]), and "it would be inconsistent with the purpose of the assumption of the risk doctrine to isolate the moment of injury and ignore the context of the accident" ( id. ).

2024Dist. , 126 AD3d 1306 , 1308 [4th Dept 2015] [internal quotation marks omitted]). " '[T]he assumption [of the risk] doctrine applies to any facet of the activity inherent in it' " ( id. , quoting Maddox v City of New York , 66 NY2d 270, 277 [1985]), and "it would be inconsistent with the purpose of the assumption of the risk doctrine to isolate the moment of injury and ignore the context of the accident" ( id. ).

2021The defendants made a prima facie showing of their entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk, by establishing that the plaintiff assumed the risk of being shot by an accidently discharged firearm during a high speed target shooting competition, which was a risk inherent to that sport ( see Bukowski v Clarkson Univ. , 19 NY3d 353, 356 ).

2020Risks which are "commonly encountered" or "inherent" in a sport, as well as risks "involving less than optimal conditions," are risks which participants have accepted and are encompassed by the assumption of the risk doctrine ( id. at 356 ; see Bryant v Town of Brookhaven , 135 AD3d 801, 802 ).

2017As for the conditions of the gymnasium, it is well settled that the doctrine of primary assumption of the risk "may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable" ( Roberts v Boys & Girls Republic, Inc. , 51 AD3d 246, 248 [2008], affd 10 NY3d 889 [2008]; see Bukowski v Clarkson Univ. , 19 NY3d at 356 ; Sykes v County of Erie , 94 NY2d 912, 913 [2000]; Maddox v City of New York , 66 NY2d at 277-278 ).

2017As for the conditions of the gymnasium, it is well settled that the doctrine of primary assumption of the risk “may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable” (Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 248 [2008], affd 10 NY3d 889 [2008]; see Bukowski v Clarkson Univ., 19 NY3d at 356 ; Sykes v County of Erie, 94 NY2d 912, 913 [2000]; Maddox v City of New York, 66 NY2d at 277-278 ).

2012The doctrine of primary assumption of the risk provides that “ ‘by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ ” (Kirkland v Hall, 38 AD3d 497, 498 [2007], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Anand v Kapoor, 15 NY3d 946, 947-948 [2010]).

2011The policy underlying the doctrine of primary assumption of the risk is “to facilitate free and vigorous participation in athletic activities” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]; see Anand v Kapoor, 61 AD3d 787 , 792 [2009], affd 15 NY3d 946 [2010]).

2012School Dist., 62 AD3d 67, 69 [2009], affd 14 NY3d 392 [2010], quoting Pelzer u Transel El. & Elec.

2012School Dist., 62 AD3d 67, 69 [2009], affd 14 NY3d 392 [2010], quoting Pelzer u Transel El. & Elec.

2025Finally, the plaintiff demonstrated that the doctrine of assumption of the risk does not apply to this case ( see Cotty v Town of Southampton , 64 AD3d 251, 256 ; Moore v City of New York , 29 AD3d 751, 752 ).

2017The County defendants’ contention that the plaintiffs’ claim is barred by the doctrine of primary assumption of the risk is without merit (see Cotty v Town of Southampton, 64 AD3d 251, 256-257 [2009]).

2021It is well settled that "[a claimant] will not be held to have assumed those risks that are not inherent . . . , i.e., not ordinary and necessary in the sport" ( Lamey v Foley , 188 AD2d 157, 164 [4th Dept 1993] [internal quotation marks omitted]; see Wyzykowski v State of New York , 162 AD3d 1705 , 1706 [4th Dept 2018]).

2005Under the doctrine of primary assumption of the risk, participants in a sporting activity “properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v Fell, 68 NY2d 432, 439 [1986], citing Maddox v City of New York, 66 NY2d 270, 277-278 [1985]), and may be held to have assumed those risks that are “inherent” (Cole v New York Racing Assn., 24 AD2d 993, 994 [1965], affd 17 NY2d 761 [1966]) or “ ‘ “ordinary and necessary” ’ ” in the sport (Turcotte, 68 NY2d at 443

2024"The doctrine of primary assumption of the risk provides that by engaging in a sport [*2]or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Kirkland v Hall , 38 AD3d 497, 498 [internal quotation marks omitted]; see Morgan v State of New York , 90 NY2d 471, 484 ).

2015“The doctrine of primary assumption of the risk provides that by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are *816 inherent in and arise out of the nature of the sport generally and flow from such participation” (Kirkland v Hall, 38 AD3d 497, 498 [2007] [internal quotation marks omitted]; see Morgan v State of New York, 90 NY2d 471, 484 [1997]).

2017As for the conditions of the gymnasium, it is well settled that the doctrine of primary assumption of the risk "may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable" ( Roberts v Boys & Girls Republic, Inc. , 51 AD3d 246, 248 [2008], affd 10 NY3d 889 [2008]; see Bukowski v Clarkson Univ. , 19 NY3d at 356 ; Sykes v County of Erie , 94 NY2d 912, 913 [2000]; Maddox v City of New York , 66 NY2d at 277-278 ).

2017As for the conditions of the gymnasium, it is well settled that the doctrine of primary assumption of the risk “may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable” (Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 248 [2008], affd 10 NY3d 889 [2008]; see Bukowski v Clarkson Univ., 19 NY3d at 356 ; Sykes v County of Erie, 94 NY2d 912, 913 [2000]; Maddox v City of New York, 66 NY2d at 277-278 ).

2014Participants do not, however, “assume ‘concealed or unreasonably increased risks’ or ‘unique and . . . dangerous condition[s] over and above the usual dangers that are inherent in the sport’ ” (Martin v State of New York, 64 AD3d 62, 64 [2009], lv denied 13 NY3d 706 [2009], quoting Morgan v State of New York, 90 NY2d at 485 ).

2010Given that the doctrine of assumption of the risk “extends to risks engendered by less than optimal conditions” (Martin v State of New York, 64 AD3d 62, 64 [2009] [internal quotation marks and citation omitted], lv denied 13 NY3d 706 [2009]), we would affirm Supreme Court’s order.

2014School Dist., 76 AD3d at 758; Tuttle v TRC Enters., Inc., 38 AD3d 992, 993-994 [2007]; compare Brown v City of New York, 69 AD3d 893, 893-894 [2010]; Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2007], lv denied 10 NY3d 717 [2008] [where the obstacles were not concealed]).

2007And finally, the foregoing considerations, along with the foreseeability of the hazard, also bear on the applicability of the doctrine of assumption of the risk (see Turcotte v Fell, 68 NY2d 432, 439 [1986]; Tuttle v TRC Enters., Inc., 38 AD3d 992, 993 [2007]).

2018School Dist. , 14 NY3d at 395 ), it does not make public policy sense to allow landowners who completely abdicate their duty to perform any kind of maintenance or repair on their property to gain the benefit of the defense ( see Palladino v Lindenhurst Union Free School Dist ., 84 AD3d at 1199 [Skelos, J., concurring on constraint] ["The automatic negation of a landowner's duty in such circumstances would give landowners license to allow properties, upon which sporting and recreational activities are held, to fall into disrepair"]).

2013If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty (see Turcotte v Fell, 68 NY2d 432, 439 [1986]; Zachary G. v Young Israel of Woodmere, 95 AD3d 946 [2012]; Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194 [2011]; Bendig v Bethpage Union Free School Dist., 74 AD3d 1263 [2010]).

2013School Dist., 14 NY3d at 395-396 ; Lecznar v Sanford, 265 AD2d 728, 730 [1999]; Roe v Keane Stud Farm, 261 AD2d 800, 801 [1999]; contrast Soloman v Taylor, 91 AD3d 1180, 1181 [2012] [horseback riding plaintiff thrown from horse spooked by dogs on the defendant’s property, where the plaintiff boarded her horse]).

1999Moreover, plaintiff was not engaged in a recreational, entertainment or sporting activity or event at the time she sustained these injuries and, therefore, the doctrine of primary assumption of the risk does not operate to insulate defendants from all liability for these injuries (see, Roe v Keane Stud Farm, 261 AD2d 800 ; see also, Morgan v State of New York, 90 NY2d 471 ; cf., Turcotte v Fell, 68 NY2d 432 ; Saravia v Makkos of Brooklyn, 264 AD2d 576 ; Becker v Pleasant Val.

2015We conclude that it would be inconsistent with the purpose of the assumption of the risk doctrine to isolate the moment of injury and ignore the context of the accident (see generally Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]).

2015We conclude that it would be inconsistent with the purpose of the assumption of the risk doctrine to isolate the moment of injury and ignore the context of the accident (see generally Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]).

2014School Dist., 76 AD3d at 758; Tuttle v TRC Enters., Inc., 38 AD3d 992, 993-994 [2007]; compare Brown v City of New York, 69 AD3d 893, 893-894 [2010]; Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2007], lv denied 10 NY3d 717 [2008] [where the obstacles were not concealed]).

2014School Dist., 76 AD3d at 758; Tuttle v TRC Enters., Inc., 38 AD3d 992, 993-994 [2007]; compare Brown v City of New York, 69 AD3d 893, 893-894 [2010]; Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2007], lv denied 10 NY3d 717 [2008] [where the obstacles were not concealed]).

2013School Dist., 14 NY3d at 395-396 ; Lecznar v Sanford, 265 AD2d 728, 730 [1999]; Roe v Keane Stud Farm, 261 AD2d 800, 801 [1999]; contrast Soloman v Taylor, 91 AD3d 1180, 1181 [2012] [horseback riding plaintiff thrown from horse spooked by dogs on the defendant’s property, where the plaintiff boarded her horse]).

2001Under the circumstances of this case, the defendants were not entitled to summary judgment dismissing the complaint based on the doctrine of assumption of the risk (see, Lecznar v Sanford, 265 AD2d 728 ).

2007Little League, 261 AD2d 396, 397 [1999]).

2006Little League, 261 AD2d 396, 397 [1999]).

2017As for the conditions of the gymnasium, it is well settled that the doctrine of primary assumption of the risk "may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable" ( Roberts v Boys & Girls Republic, Inc. , 51 AD3d 246, 248 [2008], affd 10 NY3d 889 [2008]; see Bukowski v Clarkson Univ. , 19 NY3d at 356 ; Sykes v County of Erie , 94 NY2d 912, 913 [2000]; Maddox v City of New York , 66 NY2d at 277-278 ).

2017As for the conditions of the gymnasium, it is well settled that the doctrine of primary assumption of the risk “may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable” (Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 248 [2008], affd 10 NY3d 889 [2008]; see Bukowski v Clarkson Univ., 19 NY3d at 356 ; Sykes v County of Erie, 94 NY2d 912, 913 [2000]; Maddox v City of New York, 66 NY2d at 277-278 ).

2019The doctrine of primary assumption of the risk applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it, "particularly where the record shows that the plaintiff had viable alternatives to [his or] her own location" ( Koenig v Town of Huntington , 10 AD3d 632, 633 ; see Cocco v City of New York , 114 AD3d 617, 617 ; Sutton v Eastern N.Y.

2009On its motion for summary judgment dismissing the complaint, the defendant demonstrated its entitlement to judgment as a matter of law based upon the doctrine of primary assumption of the risk (see Roberts v Boys & Girls Republic, Inc., 10 NY3d 889 [2008]; Sutfin v Scheuer, 74 NY2d 697, 698 [1989]; Koenig v Town of Huntington, 10 AD3d 632, 633 [2004]; Starke v Town of Smithtown, 155 AD2d 526, 527 [1989]; see also Pira v Sterling Equities, Inc., 16 AD3d 396, 396-397 [2005]).

2010Here, contrary to the plaintiffs contention, the doctrine of primary assumption of the risk applies (see Galski v State of New York, 289 AD2d 195 [2001]; Bockelmann v New Paltz Golf Course, 284 AD2d 783, 784 [2001]), and thus, Engineer’s was entitled to summary judgment dismissing the complaint insofar as asserted against it.

2009The defendant made a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of the risk by demonstrating that the risk of colliding with the wall was inherent in the activity, and the condition of the wall was open and obvious (see Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2007]; Marucheau v Suffolk County Community Coll., 23 AD3d 445 [2005]; Kazlow v City of New York, 253 AD2d 411 [1998]), as was any height differential between the floor and the wrestling mat (see Sammut v City of New York, 37 AD3d 811, 812 [2007]; Morlock v Town of N

2013Under the doctrine of primary assumption of the risk, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally, and flow from such participation (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Mendoza v Village of Greenport, 52 AD3d 788 [2008]; Mondelli v County of Nassau, 49 AD3d 826 [2008]; Joseph v New York Racing Assn., 28 AD3d 105 [2006]).

2013Under the doctrine of primary assumption of the risk, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally, and flow from such participation (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Mendoza v Village of Greenport, 52 AD3d 788 [2008]; Mondelli v County of Nassau, 49 AD3d 826 [2008]; Joseph v New York Racing Assn., 28 AD3d 105 [2006]).