"Assumption of Risk" Update

If you attend a baseball game and get struck by a foul ball, you are deemed to have “assumed the risk” of injury by choosing to attend (and are therefore precluded from bringing a lawsuit). But what other scenarios should this doctrine apply (or not apply)? Recently, the New York Courts ruled on several cases involving an “assumption of risk” defense, dismissing some lawsuits and in other instances allowing claims to go forward. A summary of some of these recent decisions appears below. 

$2.7 Million Award For Student Struck By Baseball Bat (Swung By Negligent Fellow Student) Overturned 

A jury’s award of $2.7 million to a former student who was slammed in the face by a carelessly swung bat during an elective high school gym class has been thrown out by a state appellate court. In Navarro v. City of New York, 2011 NY Slip Op 06412,  the Appellate Division, First Department noted that a participant in an athletic activity assumes the “commonly appreciated risks” that are “inherent” in the sport that arise out of the nature of the sport generally. The Court indicated that the danger from swinging bats during warm-up, which is when the accident occurred, is to be expected in baseball and softball, and the female teenage  Plaintiff, an experienced player, admittedly knew those risks.

Judge Allows Horseback Rider’s Suit Against Ranch to Proceed Due to Dangerous Horse Provided

A woman’s suit can go forward over back and shoulder injuries she claims she suffered while riding a horse inaptly named Friendly at an Adirondack Mountains stable, a state judge has held. According to the record before Wayne County Court Judge John B. Nesbitt in Vanderbrook v. Emerald Springs Ranch, 2011 NY Slip Op 32355(U), the Plaintiff established that she adequately expressed her concerns to employees of the Emerald Springs Ranch in Saranac Lake and its operators that she felt unsafe on Friendly during their ride in July 2004. Ms. Vanderbrook complained that personnel at the ranch knew she was not an experienced rider and that the horse reared early in the ride. She said that Friendly also balked at crossing pools of water and rubbed her shanks against trees in an effort to knock off Ms. Vanderbrook. At one point, Ms. Vanderbrook said her leg became caught on a tree and her torso was yanked violently backward. The Court noted that, while defendants can generally argue that pleasure horse riders “assume the risks” of their riding, there were adequate indications that Friendly was not so friendly. “In the Court’s view, the plaintiff has submitted sufficient evidence…which the trier of fact may infer that on the day in question plaintiff’s horse was of aggressive temperament manifesting behavior both recalcitrant and disobedient,” the Judge wrote.

In Rejecting Negligence Suit, Judge Finds That Golfing in the Rain Comes With Risks

A golfer who refused to come out of the rain and fell on stairs near the 15th hole cannot sustain a negligence action against the Pennsylvania course, an Eastern District U.S. judge has held.

“No matter how carefully we construct golf courses in the form of earthly Elysian fields, they necessarily retain some dangers to those who use them,” Senior Judge Jack B. Weinstein wrote in Rochford v. Woodloch Pines, 10-cv-3190 (EDNY). “With the pleasures of playing in the rain on artificially-created natural paradises comes the known risks of walking on wet steps and grounds.”

The injury occurred when the Plaintiff attempted to navigate a brick and wooden railroad tie staircase leading to the 15th green, records show. He slipped and broke his ankle, and then commenced a lawsuit alleging the course owner was negligent for failing to install a hand rail. The Court concluded there was no case. “Plaintiff knew that it was raining, and that the steps appeared to be wet and slippery,” Judge Weinstein wrote. “He was, or should have been, aware of the risk of slipping. The fact that the stairs did not have a hand rail was an open and obvious condition. As an experienced golfer he should have appreciated the nature of the danger.”

Judge Allows Family of Woman Killed in Rockslide to Sue State

The family of a woman killed in a rockslide at a public park after leaving a marked trail to explore a waterfall can proceed with a lawsuit against the state, according to a Court of Claims judge, who questioned the sufficiency of the park’s signage.

The suit claimed the State failed to maintain safe conditions,proper signage or enforce rules keeping visitors away from the restricted premises despite knowing that many hikers went to the base of waterfalls. Court of Claims Judge Diane L. Fitzpatrick, sitting in Syracuse, rejected the state’s motion to dismiss based on “assumption of risk,” holding that the frequency of visitors breaking the rules to visit the site raised questions about the efficacy of the state’s measures. In Arsenault v. State of New York, 018-220-2011, Judge Fitzpatrick wrote, “Given Claimants’ submissions indicating that many people disregarded the posted signs and went to the site of the Falls, and that the State was well aware of this fact, raises questions as to the sufficiency of the signs, or, in other words, the reasonableness of the State’s preventative actions.”

(The above content is all based on recent articles and analysis from the New York Law Journal).