Assumption of Risk Doctrine in Sports: Hold or Fold?

By Katryna L. Kristoferson and David Paul Horowitz | June 26, 2023

Introduction

Many of us recall learning about the assumption of risk doctrine in law school, while others learned about it in practice. Whether in New York state or federal courts applying New York law, the doctrine today is limited to “athletic and recreational activities,” and that limitation, as Judge Benjamin Cardozo explained in Murphy v. Steeplechase Amusement, 250 NY 479, 482- 483 (1929), “is based on the premise that ‘one who takes part in … a sport accepts the dangers that inhere in it so far as they are obvious and necessary.’”

A Brief History of the Assumption of Risk Doctrine

What many of may not recall is that the New York State Legislature essentially abolished the assumption of risk doctrine when New York adopted a comparative fault regime in 1975, eliminating the bar to recovery which had provided that a plaintiff in a personal injury or wrongful death action was not entitled to any recovery where the plaintiff or decedent was found to be at least 1% liable. The change which took effect Sept. 1, 1975, and applied to actions commenced on or after the effective date, and was codified as CPLR 1411:

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.
CPLR 1411.

Notwithstanding the enactment of CPLR 1411, the assumption of the risk doctrine survived in one limited context to this day: “Though we have acknowledged that the assumption of risk doctrine may not ‘sit comfortably’ within the landscape of comparative fault, it remains in full force in the limited context of athletic and recreative activities.” See Grady v. Chenago Valley Central School District, 2023 NY Slip Op 02142 (2023).

The Court Of Appeals 2023 ‘Grady’ Decision

In Grady, the Court of Appeals revisited the exception to the doctrine for athletic and recreational activities to determine whether it barred two high school athletes from recovering for injuries sustained while engaging in athletic activities at school. The case involved two appeals from the Third Department. The court applied the doctrine in one case (Grady v. Chenago Valley Central School District, 2021 NY Slip Op 00468 [3d Dept. 2021]) and declined to apply it in the second (Secky v. New Paltz Central School District, 2020 NY Slip Op 75053 [3d Dept. 2020]).

The decision was written by Judge Michael Garcia, joined by Chief Judge Rowan Wilson and Judges Anthony Cannataro and Shirley Troutman, who concurred. Illustrating divergent views in the application of the doctrine, Judge Rivera concurred in Grady, while dissenting in Secky, whereas Judge Madeline Singas dissented in Grady and concurred in Secky. Judge Caitlin Halligan took no part.

In Secky, the “plaintiff, who had played basketball at the highest amateur student level, was injured during a drill … At the time of the drill, bleachers stationed near the court were retracted. The plaintiff was injured when, pursuing a loose ball from the top of the key toward the bleachers, another player collided with him, causing the plaintiff to fall into the bleachers.”

In Grady, a high school athlete “was injured during his participation in a fast-moving, intricate drill. The drill involved two coaches hitting balls to players stationed in the infield, with one coach hitting to the third baseman, who would then throw to first base, while another coach hit to the shortstop, who would throw to the second baseman who would, in turn, throw to a player at ‘short first base,’ positioned a few feet from regulation first base.”

At the outset of the decision, the majority noted “since the enactment of the comparative fault regime of CPLR article 14 in 1975, this court has retained a form of the primary assumption of risk doctrine, applicable only in a narrow set of circumstances, in recognition of the fact that ‘athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks.’”

Explaining its rationale for declining to apply the doctrine in Secky, the majority noted that “we have, in fact, previously held that ‘the risk of collision with an open and obvious item near a basketball court was inherent in playing on that court’ and so plaintiff had assumed the risk of that injury … The drill assigned to plaintiff and his teammates did not unreasonably increase the risk of injury beyond that inherent in the sport of basketball, and the Appellate Division properly granted defendants’ motion for summary judgment.”

In Grady, the court explained that “errant balls may be an inherent risk of playing baseball, but a jury should be permitted to determine whether the plaintiff’s injury was the result of such an inherent risk, or whether ‘the risks were concealed or unreasonably enhanced’ by the complexity of the drill performed with use of a small protective screen.”

While this may seem a run of the mill decision, the application of the doctrine to one set of facts and not the other begs the question of whether there are, in fact, clear guideposts for its application, and we found interesting the portion of the dissent by Judge Rivera which called for the complete abolition of the assumption of risk doctrine in New York.

Judge Rivera’s Dissent (in ‘Secky’)

While the majority wrote that she failed to provide “a ‘compelling justification …” and “summarily characterizes nearly 50 years of precedent as a misinterpretation of CPLR 1411,” Judge Rivera discussed, in depth, the legislative history and intent behind the adoption of CPLR 1411. See Grady, supra at 4-10.

Judge Rivera first discussed the policy intent behind “abolish[ing] the assumption of risk doctrine as an absolute bar to recovery,” before noting that the legislative branch agreed with the intent and abolished the doctrine. Her dissent quoted the Assembly Sponsor of the legislation that included CPLR 1411 which explained:

The bill would equate the defenses of contributory negligence and assumption of risk under the rubric of ‘culpable conduct.’ This is consistent with the position taken by the New York courts (McFarlan v. City of Niagara Falls, 247 NY 340, 349 [1928]). Unless assumption of risk is so treated, it would negate any duty owed by defendant to plaintiff (see McEvoy v. City of New York, 266 App Div 445, 447 [2d Dept. 1943], affd 292 NY 654 [1944]), thus undermining the purpose of the proposed bill, which is to permit partial recovery in cases in which the conduct of each party is culpable” (Sponsor’s Mem, Bill Jacket, L 1975, ch 69 at 7; accord Mem of Jud Conf on CPLR, Bill Jacket, L 1975, ch 69 at 18; see also 13th Ann Rep of Jud Conf on CPLR, reprinted in 1975 McKinney’s Session Laws of NY at 1477, 1484 [noting that this interpretation of the provision ‘is consistent with the result reached in the vast majority of states that have adopted some form of comparative negligence’”]).

Judge Rivera also noted that “the Attorney General expressed in plainest terms that ‘[t]he bill abrogates the common law rules of contributory negligence and assumption of risk and establishes a rule of so-called ‘pure’ comparative negligence. (Mem of Attorney General, Bill Jacket, L 1975, ch 69 at 20).”

Despite the majorities effort to offer a clear rationale for applying the doctrine in one instance but not the other, Judge Rivera astutely pointed to a significant issue with the continued application of this doctrine based upon the premise of the “enormous social value” of sports:

Many socially beneficial nonathletic activities carry inherent risks of injury—for example, operating a motor vehicle—and lawsuits for injuries arising from these activities are evaluated under our comparative fault regime. Further, even if it is logical to hold that a commercially- paid professional athlete has the insight and knowledge born from experience to fully appreciate and voluntarily assume the inherent risks in a sport, it is quite another matter to bar student and amateur athletes, and people enjoying recreational activity, from all tort recovery.

While preservation of activities that hold social value can be important, the push to insulate from liability professional and recreational sports through the application of the doctrine has resulted in an application of the same standard for professionals, amateur athletes, and those participating in recreational activities. For example:

In Arbegast v. Board of Education, 65 NY2d 161 (3d Dept. 1985), the plaintiff was a participant in “a donkey basketball game” when she fell off the animal at a fund-raising event for the high school’s senior class. The Third Department held that “there is evidence from which the jury could have concluded that plaintiff had knowledge of the risk and by participating in the games voluntarily assumed it, and no question that plaintiff’s conduct in mounting the donkey from which she was thrown was a cause in fact of her injuries.”

In Turcotte v. Fell, 68 NY2d 432 (1986), the plaintiff, a professional jockey for 17 years, was rendered a paraplegic after he was clipped by another jockey and thrown from his horse. The Court of Appeals noted that “a professional athlete is more aware of the dangers of the activity, and presumably more willing to accept them in exchange for a salary, than is an amateur,” and held that a professional jockey is aware of the risks associated with racing, and therefore the doctrine applies.

In Benitez v. New York City Board of Education, 73 NY2d 650 (1989), plaintiff was a 19-year- old athlete who broke his neck during a varsity football game. When applying the doctrine to high school athletes, the court adopted a sliding-scale assessment stating that “a high school athlete, even an outstanding one, does not assume all the risks of a professional sportsperson, neither does a 19-year-old senior star football player and college scholarship prospect fall within the extra protected class of those warranting strict parental duties of supervision.” The court opined that the plaintiff’s accident, “in sum, was a luckless accident arising from the vigorous voluntary participation in competitive interscholastic athletics,” and determined that the doctrine applied.

To the extent that there is a concern that without the assumption of risk doctrine professional and recreational sports would suffer, Justice Rivera cites to a number of jurisdictions which have abolished the assumption of risk doctrine as a complete defense “without seeing an end to youth sports or youth leagues.”

For example, in 1981 the Supreme Court of Oregan determined that since the adoption of contributory negligence, the doctrine of assumption of risk was abolished. See Blair v. Mt. Hood Meadows Development, 630 P2d 827 (Or. 1981)(holding “Our analysis leads us to conclude that a separate instruction focusing upon the plaintiff’s implied assumption of the risk is no longer proper in negligence actions because ORS 18.475(2) has abolished the doctrine in every sense. Instead, the jury instructions in negligence cases involving injuries resulting from the normal risks of a sport (e.g., the Vendrell case) should focus upon the plaintiff’s burden to prove the elements of negligence (especially the defendant’s duty and breach of duty causing plaintiff’s injury) in order to hold the defendant liable.” A quick perusal of websites discussing school sports participation in Oregon suggests they have not suffered as a result of the abolition of the doctrine.

Conclusion

Whatever utility the assumption of risk doctrine may have served in the past, its seemingly subjective and inconsistent application coupled with what appears to be the abrogation of clear legislative intent suggest that it may be time abandon the exception. We are both advocates of rules that offer clear guiderails for their application, and certainly favor making the practice of law just a little less complicated. Based upon the majority opinion of the Court of Appeals in Grady, it does not appear that New York state will abandon the exception to the assumption of risk doctrine for athletic and recreative activities.

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