The primary assumption of risk doctrine provides that those who engage in sporting or recreational activities consent to the commonly appreciated risks which are inherent in and arise out of the nature of that sport or activity. It thus acts as a bar to a defendant's liability based on that defendant's alleged negligence.
Deciding precisely which activities the assumption of risk doctrine applies to sometimes presents problems for the courts. On March 5th, the Third Department surprisingly failed to allow the doctrine to be applied in a situation which would seem to call for its natural application in the case of Trupia v Lake George Cent. School Dist., 2009 NY Slip Op 01571.
In that case, the plaintiff was participating in a summer school program administered by the defendant School District. During a break in classes, he attempted to slide down a banister in stairway. In doing so, he fell and sustained a skull fracture and brain injury.
The plaintiff's parent commenced an action against the School District, and the School District sought to amend their answer to include the affirmative defense of primary assumption of risk.
The Third Department found that the proposed defense was "devoid of merit," as a matter of law and thus did not allow the School District to assert the defense. The Court noted that both the Second and Fourth Departments have expanded application of primary assumption of risk beyond sporting and recreational activities. Indeed, the Court even noted that Fourth Department even applied it in a situation similar to the case before it [infant plaintiff injured while attempting to slide down handrail (Lamandia-Cochi v Tulloch, 305 AD2d 1062 [4th Dept 2003]). Nevertheless, the Court refused to allow the doctrine to be asserted by simply stating:
Extensive and unrestricted application of the doctrine of primary assumption of risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff's own negligence barred recovery from the defendant (quoting Pelzer v Transel El. & Elec. Inc., 41 AD2d 379 [1st Dept. 2007]).
If you ask me, we need more "throwbacks" in the area of tort law. If there any situations where assumption of risk should apply, it should be in those situations in which, such as was the case here, the plaintiff is engaging in inherently risky, dangerous, or even stupid behavior. These are the kinds of cases which simply drive the general public crazy, with good reason. Why should the person who wholly brings it upon himself to cause himself injury be allowed to seek recovery? The pure comparative fault standard used in New York is simply based on the faulty assumption that it always must be considered whether someone else was at fault. No. Sometimes plaintiffs bring their own injuries upon themselves by engaging in risky behavior, and juries should be allowed to consider whether that is the case by considering the assumption of risk doctrine. CPLR 1411 should be modified.