assumption of risk doctrine in New York

2026"Under the primary assumption of risk doctrine, '[a] person who chooses to participate in a sport or recreative activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation'" ( Katleski v Cazenovia Golf Club, Inc. , 44 NY3d 212 , 218, quoting Anand v Kapoor , 15 NY3d 946, 947-948 ; see Morgan v State of New York , 90 NY2d 471, 484 ; Maharaj v City of New York , 200 AD3d 769 , affd 44 NY3d 964 ). "[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner

2026Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by such participation, to those injury-causing events, conditions, and risks which are inherent in the activity ( see Katleski v Cazenovia Golf Club, Inc. , 44 NY3d 212 , 218; Morgan v State of New York , 90 NY2d 471, 484 ).

2026The plaintiffs established, prima facie, that the primary assumption of risk doctrine, which "is generally limited to risks arising from voluntary participation in athletic and recreational activities" ( Muniz v SPO Rest., LLC , 227 AD3d 1002, 1004 [internal quotation marks omitted]), is inapplicable under the circumstances of this case ( see Custodi v Town of Amherst , 20 NY3d 83, 87; Muniz v SPO Rest., LLC , 227 AD3d at 1004; cf. Safon v Bellmore-Merrick Cent.

2026The plaintiffs established, prima facie, that the primary assumption of risk doctrine, which "is generally limited to risks arising from voluntary participation in athletic and recreational activities" ( Muniz v SPO Rest., LLC , 227 AD3d 1002 , 1004 [internal quotation marks omitted]), is inapplicable under the circumstances of this case ( see Custodi v Town of Amherst , 20 NY3d 83, 87 ; Muniz v SPO Rest., LLC , 227 AD3d at 1004; cf. Safon v Bellmore-Merrick Cent.

2024The doctrine of primary assumption of risk is applied in cases where there is an elevated risk of danger, typically sporting and entertainment events and activities ( see, Turcotte v Fell, supra, at 438; Lamey v Foley, 188 AD2d 157, 163 ). 'Risks in this category are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes' ( Turcotte v Fell, supra, at 438-439).

2024The doctrine of primary assumption of risk is applied in cases where there is an elevated risk of danger, typically sporting and entertainment events and activities ( see, Turcotte v Fell, supra, at 438; Lamey v Foley, 188 AD2d 157, 163 ). 'Risks in this category are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes' ( Turcotte v Fell, supra, at 438-439).

2025“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks.” Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356 (2012) (internal quotation marks omitted).

2025We rejected those contentions and affirmed the lower courts' award of a directed verdict in favor of the venue owner, explaining that the assumption of risk doctrine "encompasses risks involving less than optimal conditions" ( id. at 356 ).

2025Moreover, "the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury" (<i>Maddox v City of New York</i>, 66 NY2d 270, 279 [1985]).</p> <p>For the reasons I discuss, the assumption of risk doctrine is not a complete defense to plaintiff's negligence action, which is based on defendants' alleged failure to maintain the park in a reasonably safe condition for purposes of sport and recreational activities.

2024As previously noted, application of the assumption of risk doctrine "is not to be determined in a vacuum" ( Maddox v City of New York , 66 NY2d at 278 ), but instead "measured against the background of the skill and experience of the particular [plaintiff]" ( Bishop v State of New York , 219 AD3d at 995 [internal quotation marks and citations omitted]).

2024Inc. , 217 AD3d 1296 ["(W)here it is clear that the plaintiff was aware of a condition but nevertheless continued with his or her activity, the doctrine of primary assumption of risk has been applied"]; Milligan v Sharman , 52 AD3d at 1239 ; Joseph v New York Racing Assn. , 28 AD3d 105, 109 [2d Dept 2006] [the plaintiff assumed risk of injury where he was aware of open and obvious wet conditions before being injured on the second lap around a riding ring]; see generally Benitez v New York City Bd. of Educ. , 73 NY2d 650, 659 [1989]).

2018The policy underlying the primary assumption of risk doctrine is "to facilitate free and vigorous participation in athletic activities" ( Benitez v New York City Bd. of Educ ., [*2] 73 NY2d 650, 657 ; see Cotty v Town of Southampton , 64 AD3d 251, 254 ).

2024Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to those "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Morgan v State of New York , 90 NY2d 471, 484 ; see Custodi v Town of Amherst , 20 NY3d 83, 88 ; Cotty v Town of Southampton , 64 AD3d 251, 253-254 ).

2019Like our dissenting colleague, we acknowledge the Court of Appeals' admonition that the doctrine of primary assumption of risk "does not exculpate a landowner from liability for ordinary negligence in maintaining a premises" ( Sykes v County of Erie , 94 NY2d at 913 ; see Custodi v Town of Amherst , 20 NY3d 83, 89 ; Cotty v Town of Southampton , 64 AD3d 251, 257 ).

2025Philius v City of New York</i>, 161 AD3d 787 , 799 [2d Dept 2018] [Connolly, J., concurring on constraint with the majority's holding that the plaintiff assumed the risk of tripping on a crack in the surface of a public housing authority's outdoor basketball court, and explaining that the focus of the primary assumption of risk doctrine is on whether a risk is inherent in a sport, and not a plaintiff's "knowledge of the defect" in a playing surface]; <i>Palladino v Lindenhurst Union Free School Dist.</i>, 84 AD3d 1194, 1196, 1199 [2d Dept 2011] [Skelos, J., concurring on constraint with the ma

2025Although the primary assumption of risk doctrine "remains in full force in the limited context of athletic and recreative activities" following the enactment of CPLR 1411 ( see Grady , 40 NY3d at 94), "[w]e have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation" ( Trupia , 14 NY3d at 395 ).

2015Pursuant to the doctrine of primary assumption of 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 sport generally and flow from such participation’ ” (Alqurashi v Party of Four, Inc., 89 AD3d 1047, 1047 [2011], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Custodi v Town of Amherst, 20 NY3d 83 [2012]; Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012]; Hae Seng Kim v Flushing YMCA, 64 AD3d 679 [2009]).

2014However, the doctrine of primary assumption of risk will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased (see Alqurashi v Party of Four, Inc., 89 AD3d 1047, 1047-1048 [2011]; Demelio v Playmakers, Inc., 63 AD3d 777 [2009]).

2023"The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions" ( Bukowski v Clarkson Univ. , 19 NY3d 353, 356 ; see Sykes v County of Erie , 94 NY2d 912, 913 ).

2022"The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions" ( Bukowski v Clarkson Univ. , 19 NY3d 353, 356 ; see Sykes v County of Erie , 94 NY2d 912, 913 ). "'Assumption of risk is not an absolute defense but a measure of the defendant's duty of care'" ( Maharaj v City of New York , 200 AD3d 769, 769 , quoting Asprou v Hellenic Orthodox Community of Astoria , 185 AD3d at 642).

2013The doctrine of primary assumption of risk “encompasses risks associated with the construction of the playing surface” (Morlock v Town of N. Hempstead, 12 AD3d 652, 652 [2004]), “ ‘and any open and obvious condition on it’ ” (Casey v Garden City Park-New Hyde Park School Dist., 40 AD3d 901, 902 [2007], quoting Welch v Board of Educ. of City of N.Y., 272 AD2d 469, 469 [2000]; see Viola v Carmel Cent.

2013The doctrine of primary assumption of risk “encompasses risks associated with the construction of the playing surface” (Morlock v Town of N. Hempstead, 12 AD3d 652, 652 [2004]), “ ‘and any open and obvious condition on it’ ” (Casey v Garden City Park-New Hyde Park School Dist., 40 AD3d 901, 902 [2007], quoting Welch v Board of Educ. of City of N.Y., 272 AD2d 469, 469 [2000]; see Viola v Carmel Cent.

2024Inc. , 217 AD3d 1296 ["(W)here it is clear that the plaintiff was aware of a condition but nevertheless continued with his or her activity, the doctrine of primary assumption of risk has been applied"]; Milligan v Sharman , 52 AD3d at 1239 ; Joseph v New York Racing Assn. , 28 AD3d 105, 109 [2d Dept 2006] [the plaintiff assumed risk of injury where he was aware of open and obvious wet conditions before being injured on the second lap around a riding ring]; see generally Benitez v New York City Bd. of Educ. , 73 NY2d 650, 659 [1989]).

2022Turning to defendant's remaining defenses, on its summary judgment motion defendant also contended that Bouchard had assumed the risks inherent in harness racing, thereby negating any claim of negligence on the part of Commission officials. [FN2] The doctrine of assumption of risk "provides that 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 sport generally and flow from such participation'" ( Joseph v New York Racing Assn. , 28 AD3d 105, 108 [2006], quoting Morgan v State of

2023This is also what Fritz explained he was doing after his first lap and why he would not just pull off, testifying that he "wasn't really sure . . . what was going on with this section of the track." In instances like this, where it is clear that the plaintiff was aware of a condition but nevertheless continued with his or her activity, the doctrine of primary assumption of risk has been applied — including where the defect was partially concealed and not directly observed ( see Martin v State of New York , 64 AD3d 62, 65-66 [3d Dept 2009], lv denied 13 NY3d 706 [2009]; see also Festa v Apex Ca

2016Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “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” (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Martin v State of New York, 64 AD3d 62, 63-64 [2009], lv denied 13 NY3d 706 [2009]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958 [2008]).

2018It is well-settled that an owner or operator of an athletic field or facility "is not an insurer of the safety of its spectators" ( Akins v Glens Falls City School Dist. , 53 NY2d 325, 329 [1981]; see Procopio v Town of Saugerties , 20 AD3d 860, 861 [2005], lv denied 5 NY3d 716 [2005]; Rosa v County of Nassau , 153 AD2d 618, 619 [1989]) and that, under the assumption of risk doctrine, consenting "[s]pectators and bystanders . . . assume risks associated with a sporting event or activity, even at times when they are not actively watching the event" ( Newcomb v Guptill Holding Corp. , 31 AD3d 87

1985Accordingly, the court held "we need not reach and, therefore, do not consider the correctness of the trial court’s charge to the jury with respect to the applicability of the doctrine of assumption of risk under this State’s comparative negligence statute.” (Supra, at p 333.) Chief Judge Cooke, dissenting in Akins (supra), found the majority’s rule to be inappropriate and viewed " 'reasonable care under the circumstances’ ” (p 333) to be more properly a question for the jury: "By holding as a matter of law that the defendant’s duty of reasonable care extends only to the construction of a back

2018We note that this Court has consistently applied the primary assumption of risk doctrine in cases involving similar known or open and obvious conditions in the playing surfaces of various types of courts ( see Wilck v Country Pointe at Dix Hills Homeowners Assn., Inc ., 111 AD3d 822, 823-824 ; Mendoza v Village of Greenport , 52 AD3d 788, 788-789 ; Casey v Garden City Park-New Hyde Park School Dist ., 40 AD3d 901, 902 ; Sammut v City of New York , 37 AD3d 811, 812 ; Gamble v Town of Hempstead , 281 AD2d 391, 391-392 ; Smith v Village of Hempstead , 264 AD2d 413, 414 ; Cevetillo v Town of Mount

2016Therefore, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint based on the doctrine of primary assumption of risk, and the plaintiff, in opposition, failed to raise a triable issue of fact (see Wilck v Country Pointe at Dix Hills Homeowners Assn., Inc., 111 AD3d 822 [2013]; Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194 [2011]; Casey v Garden City Park-New Hyde Park School Dist., 40 AD3d 901 [2007]; cf. Simmons v Saugerties Cent.

2026"Under the primary assumption of risk doctrine, '[a] person who chooses to participate in a sport or recreative activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation'" ( Katleski v Cazenovia Golf Club, Inc. , 44 NY3d 212 , 218, quoting Anand v Kapoor , 15 NY3d 946, 947-948 ; see Morgan v State of New York , 90 NY2d 471, 484 ; Maharaj v City of New York , 200 AD3d 769 , affd 44 NY3d 964 ). "[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner

2025Under the primary assumption of risk doctrine, "[a] person who chooses to participate in a sport or recreative activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Anand v Kapoor , 15 NY3d 946, 947-948 [2010] [internal quotation marks omitted]; see Morgan v State of New York , 90 NY2d 471, 484 [1997] [observing that "knowledge plays a role but inherency is the sine qua non" of the doctrine]). "[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact

2025Other Justices have similarly argued that, against the Court's precedent, lower courts have placed undue and unwarranted emphasis on the sole fact that the plaintiff was aware of a risk and failed to properly consider whether the risk is inherent to the recreational activity ( see e.g. , Philius v City of New York , 161 AD3d 787, 799 [2d Dept 2018] [Connolly, J., concurring on constraint with the majority's holding that the plaintiff assumed the risk of tripping on a crack in the surface of a public housing authority's outdoor basketball court, and explaining that the focus of the primary assu

2025Philius v City of New York</i>, 161 AD3d 787 , 799 [2d Dept 2018] [Connolly, J., concurring on constraint with the majority's holding that the plaintiff assumed the risk of tripping on a crack in the surface of a public housing authority's outdoor basketball court, and explaining that the focus of the primary assumption of risk doctrine is on whether a risk is inherent in a sport, and not a plaintiff's "knowledge of the defect" in a playing surface]; <i>Palladino v Lindenhurst Union Free School Dist.</i>, 84 AD3d 1194, 1196, 1199 [2d Dept 2011] [Skelos, J., concurring on constraint with the ma

2024Under the doctrine of primary assumption of 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 ).

2012Thus, the doctrine of assumption of risk provides that “ ‘[a] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law’ ” (Reidy v Raman, 85 AD3d 892, 892 [2011], quoting Leslie v Splish Splash at Adventureland, 1 AD3d 320, 321 [2003]; see Morgan v State of New York, 90 NY2d 471 [1997]).

2021Here, the defendants established their prima facie entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk ( see Ziegelmeyer v United States Olympic Comm. , 7 NY3d 893, 894 ; Sykes v County of Erie , 94 NY2d 912, 913 ; O'Toole v Long Is.

2017This includes risks associated with the construction of the playing surface and any open and obvious condition on it (see Ziegelmeyer v United States Olympic Comm., 7 NY3d 893, 894 [2006]; Sykes v County of Erie, 94 NY2d 912, 913 [2000]; Maddox v City of New York, 66 NY2d 270, 277 [1985]; Simon v Hamlet Windwatch Dev., LLC, 120 AD3d 657, 657-658 [2014]; Galski v State of New York, 289 AD2d 195, 196 [2001]). *759 The defendant established its prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied (see Sykes v County of Erie,

2021Under the doctrine of primary assumption of risk, "[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be" ( Brown v City of New York , 69 AD3d 893, 893 ; see Morgan v State of New York , 90 NY2d 471, 484 ).

2019Under the doctrine of primary assumption of 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" ( Morgan v State of New York , 90 NY2d 471, 484 ; see Brown v City of New York , 69 AD3d 893, 893 ).

2026Here, the defendants established, prima facie, that the doctrine of primary assumption of risk barred the plaintiffs' recovery ( see Zuckerman v City of New York , 49 NY2d 557, 562 ).

2015We therefore conclude that defendant established as a matter of law that this action is barred by the doctrine of assumption of risk, and plaintiff failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

2023This is also what Fritz explained he was doing after his first lap and why he would not just pull off, testifying that he "wasn't really sure . . . what was going on with this section of the track." In instances like this, where it is clear that the plaintiff was aware of a condition but nevertheless continued with his or her activity, the doctrine of primary assumption of risk has been applied — including where the defect was partially concealed and not directly observed ( see Martin v State of New York , 64 AD3d 62, 65-66 [3d Dept 2009], lv denied 13 NY3d 706 [2009]; see also Festa v Apex Ca

2016Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “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” (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Martin v State of New York, 64 AD3d 62, 63-64 [2009], lv denied 13 NY3d 706 [2009]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958 [2008]).

2019Under the doctrine of primary assumption of 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" ( Morgan v State of New York , 90 NY2d 471, 484 ; see Custodi v Town of Amherst , 20 NY3d 83, 88 ; Zachary G. v Young Israel of Woodmere , 95 AD3d 946, 946 ).

2019Under the doctrine of primary assumption of risk, a voluntary participant in a sporting activity "is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only from unassumed, concealed, or unreasonably increased risks, thus to make conditions as safe as they appear to be" ( Manoly v City of New York , 29 AD3d 649, 649 ). "[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" ( Morgan v State o