The primary assumption of risk doctrine has long been a significant defense in tort actions involving sports and recreational activities in New York. Over the past decade, courts have issued a series of decisions that have both clarified and limited the doctrine's reach. Here is an updated look at where things stand.
The Foundation of the Doctrine
The primary assumption of risk defense was introduced by New York's Court of Appeals in the landmark 1997 case of Morgan v. State of New York. Under Morgan, participants in sporting or recreational activities assume the commonly appreciated risks that are inherent in the sport or activity and flow naturally from participation. Importantly, participants do not assume the risk of intentional conduct, and the defense does not apply when the dangers or risks of the activity are concealed or unreasonably increased.
Because the doctrine negates or satisfies a defendant's duty of care, it operates as a complete defense in tort actions, making it a powerful tool for defendants in the right circumstances.
Where the Defense Applies
The defense applies to inherent risks in qualified athletic activities sponsored or operated by a defendant at a designated venue. Its purpose is to encourage athletic participation and shield sponsors or venue owners from liability that might otherwise discourage them from hosting events or making their facilities available.
Courts have applied the defense to a wide range of situations. In Bukowski v. Clarkson University, a college baseball pitcher struck by a line drive during indoor batting practice was held to have assumed that inherent risk. The court noted that even where indoor conditions were less than ideal compared to an outdoor field, the defense still applied because the risks were open, obvious, and not increased or concealed by the defendant.
Similarly, in Palladino v. Lindenhurst Union Free School District and Castro v. City of New York, courts applied the doctrine to field defects or suboptimal playing conditions where the plaintiff was aware of the condition, or it was open and obvious.
Where the Defense Does Not Apply
The doctrine has meaningful limits, and recent decisions have made those limits clearer.
First, the defense does not apply outside the context of sporting events, sponsored athletic activities, or recreational pursuits at designated venues. In Custodi v. Town of Amherst, the Court of Appeals declined to apply it to an in-line skater injured on a public sidewalk. The plaintiff was not engaged in a sporting competition at a venue sponsored or operated by the defendant, and extending the doctrine to public streets would undermine the obligation of landowners to maintain safe conditions. The usual rules of negligence and comparative fault applied instead.
Second, even within the sports context, the defense does not protect a defendant who conceals a risk or unreasonably increases the danger beyond what is inherent in the activity. In Weinberger v. Solomon Schecter School of Westchester, a 14-year-old softball pitcher was injured when directed to pitch from an unusually close position to the batter. The school's protective L screen was defective and fell to the ground during the drill. The court held that these conditions increased the inherent dangers of softball and the doctrine did not apply.
Third, the defense does not apply to horseplay or casual activities that are not sponsored or promoted by the defendant. In Trupia v. Lake George Central School District, the doctrine was held inapplicable when an 11-year-old was injured sliding down a banister at a summer camp.
The 2023 Court of Appeals Decision in Grady v. Chenango Valley Central School District
The most significant recent development came in 2023, when the Court of Appeals issued its decision in Grady v. Chenango Valley Central School District, which addressed two companion cases and provided important updated guidance.
In the first case, Secky v. New Paltz Central School District, a basketball player was injured during a rebounding drill when he collided with a teammate and fell into nearby bleachers. He argued the coach unreasonably increased the risk by eliminating court boundary lines for the drill. The Court of Appeals affirmed dismissal on assumption of risk grounds, holding that the drill did not unreasonably increase the risk of injury beyond those inherent in basketball. The court relied on its earlier decision in Trevett v. City of Little Falls, which established that the risk of collision with an open and obvious object near a basketball court is an inherent risk of the sport.
The companion Grady case reached a very different result. The plaintiff was a high school baseball player injured during a complex infield drill where coaches simultaneously hit balls to multiple infielders, who then threw to both a regular first base and a "short first base" a few feet away, with a protective screen positioned between them. An errant throw bypassed the short first baseman and the screen, striking the plaintiff in the face and causing significant vision loss. The trial court and Appellate Division both dismissed on assumption of risk grounds. The Court of Appeals reversed.
The court found that the unusual complexity of the drill (involving multiple balls in play simultaneously and a non-standard protective setup) raised triable questions of fact as to whether the drill created a dangerous condition over and above the usual dangers inherent in baseball. While errant throws are an inherent risk of the sport, the court held that whether this particular injury resulted from that inherent risk, or from a risk unreasonably increased by the drill's design, was a question for a jury to decide.
Post-Grady Developments
Following Grady, the Appellate Division continued to apply and refine the doctrine in several notable decisions.
In C.P.G. v. Uniondale School District, the Second Department applied primary assumption of risk to dismiss a claim brought by an eighth-grade student injured playing a pickup soccer game on a school field. The plaintiff alleged that pebbles and wet grass constituted dangerous conditions causing her injury. The court reversed the lower court and granted summary judgment, holding that the alleged defects did not unreasonably increase the risk beyond those inherent in outdoor soccer.
In A.G. v. Roosevelt Union Free School District, the Second Department reached the opposite result in a case involving a middle school student injured during rehearsal for a musical theatre production. The student struck her toe on a metal anchor affixed to the stage. The court reversed the grant of summary judgment in the defendant's favor, holding that a participant does not assume risks that are concealed or unreasonably enhanced, and that there was a triable question of fact as to whether the anchor on the stage was a concealed hazard.
Finally, in Gillard v. Manhattan Nuvo LLC (doing business as LeReve), the First Department addressed whether the doctrine could apply at a hookah lounge where a patron at a birthday party was injured when a bowl of burning coals fell on her. Both the trial court and the Appellate Division declined to apply the assumption of risk defense, holding that a birthday party at a hookah lounge is not a sporting event or a sponsored athletic or recreational activity at a designated venue. The court further noted that even if the doctrine somehow applied, there remained a question of whether the defendant unreasonably increased risk by failing to position the hookah at a sufficient distance from patrons.
Key Takeaways
The law in this area continues to develop, but several principles have emerged clearly from these decisions:
The primary assumption of risk doctrine applies to athletic or recreational activities at sports facilities or designated venues. It is a powerful defense when the injury results from a risk that is inherent in the activity, open and obvious, and not increased or concealed by the defendant. It does not apply to general recreational activities lacking the social and competitive attributes of sport, to activities on public streets or sidewalks, or where the defendant has structured conditions in a way that creates dangers beyond those naturally arising from the sport itself.
For defendants in sports and recreational injury cases, the key questions are whether the activity qualifies for the doctrine, and whether the specific risk at issue was truly inherent and not enhanced by anything the defendant did. For plaintiffs, the path forward often lies in demonstrating that the defendant's conduct (through equipment failures, unusual drill configurations, concealed hazards, or departures from standard practice) elevated the risk beyond what any participant could reasonably be expected to accept.
For questions about how New York’s evolving assumption of risk law may impact your organization or your case, the attorneys at Gerber Ciano Kelly Brady are here to help. Our team regularly advises and defends clients in complex sports and recreational injury matters. Contact us to discuss your specific situation and risk exposure.
