Split New York Court of Appeals Re-affirms Applicability of Primary Assumption of Risk Doctrine to Sporting Activities
By Paul V. Esposito
Despite the 1975 enactment of the comparative negligence statute, the primary assumption of risk doctrine still applies to athletic and recreative activities. Grady v. Chenango Valley Cent. Sch. Dist., 2023 N.Y. LEXIS 718. Plaintiffs were injured in separate activities: a basketball rebounding exercise and baseball infield two-ball drill. The majority ruled that retaining the doctrine protects the social value of the activities from crushing financial liabilities that could destroy them. To be consistent with comparative negligence principles, the doctrine has shifted from being an absolute defense to becoming a no-duty rule that denies an underlying cause of action. The doctrine applies only when a participant is aware of and fully appreciates the risks yet still voluntarily assumes them. The basketball player assumed the risk, but not so the baseball player. The dissent argued that the doctrine should yield to comparative negligence principles.