New York Appellate Court Affirms That The Doctrine Of Primary Assumption Of Risk May Apply To A Sports Employee
The New York State Supreme Court, Appellate Division, Second Department upheld the doctrine of primary assumption of risk in Nigro v. New York Racing Assn., Inc., 2012 NY Slip Op 01660, 93 A.D.3d 647 (2d Dep't March 6, 2012). Primary assumption of risk is a legal conclusion that a defendant was not negligent because the defendant either did not owe a duty of care to the injured party or did not breach any duty owed. Black's Law Dictionary (8th ed 2004). In the context of a sporting or recreational activity, this doctrine provides that a voluntary 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." Nigro, 93 A.D.3d at 647.
Here, however, Plaintiff was an employee of Belmont Racetrack whose responsibilities included riding the horse which ultimately fell upon her. Id. More specifically, at the time of her injury, Plaintiff Sara Nigro was employed as an exercise rider and groom. She was instructed to exercise a horse by riding it at a walking pace along a dirt path. The dirt path was intersected by an asphalt road in several places, and the asphalt road was strewn with loose gravel. After traversing three asphalt roads along the dirt path without incident, the horse slipped and fell on loose gravel on the fourth, landed on top of Ms. Nigro, and caused her injury.
Ms. Nigro asserted that she was acting under the compulsion of a superior in riding the horse across the asphalt road. She also asserted that Belmont had unreasonably increased the risk of riding on its premises by using asphalt as a road paving material. Id. In contrast, the New York Racing Association, which owns and operates Belmont Racetrack, argued that Plaintiff was a highly experienced professional rider, who was aware of the gravel condition on the road before she began to cross it, and understood the risks posed by loose gravel.
The Appellate Court applied the doctrine of primary assumption of risk to these facts and found Plaintiff's arguments unavailing. Id., citing Morgan v. State of New York, 90 N.Y.2d 471, 484 (1997); Cotty v. Town of Southampton, 64 A.D.3d 251, 253 (2009). In so holding, the Court noted,
If the risks are known by or perfectly obvious to the participant, he or she is deemed to have consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.
Nigro, 93 A.D.3d at 647, citing Turcotte v. Fell, 68 N.Y.2d 432, 439 (1986); Brown v. City of New York, 69 A.D.3d 893 (2010); Sykes v. County of Erie, 94 N.Y.2d 912, 913 (2000). Further, "[t]his includes risks associated with the condition of the surface on which the activity is performed." Id., citing Joseph v. New York Racing Assn., 28 A.D.3d 105, 108.
Thus, with the duties of Defendant discharged, the Appellate Court determined that whether Ms. Nigro acted under the compulsion of a superior in riding across the road was not a triable issue of fact. Id., citing Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658 (1989); Ticha v. OTB Jeans, 39 A.D.3d 310 (2007); Modolo v. Fleischmann, 8 A.D.3d 539 (2004). The Appellate Court also determined that whether Defendant had unreasonably increased the risk of riding on its premises by using asphalt as a road paving material was not a triable issue of fact.
Even where an individual is required to undertake certain risks by virtue of their employment, such risks are still voluntarily undertaken where the danger is open and obvious. Moreover, the expertise of the individual may actually increase their awareness of the risk.