The question in this case is whether the doctrine of assumption of risk bars plaintiff’s tort claims against the school district responsible for maintaining a field where plaintiff was injured while playing football.
The law of torts was historically unfavorable for a plaintiff whose conduct contributed to her own injuries. If a plaintiff’s injury was in any way caused by her own negligence, the doctrine of contributory negligence barred her recovery. And if the plaintiff was not negligent, but she consented to the injurious conduct of the defendant, then the doctrine of assumption of risk barred her recovery.
In 1975, New York abandoned these common law doctrines with the statutory adoption of comparative fault. But the Court of Appeals continued to apply the doctrine of assumption of risk, particularly in the context of sporting events. Under the Court’s cases, assumption of risk remains a defense to a negligence action where the plaintiff was aware of the risks inherent in the activity, had an appreciation of the nature of the risks, and voluntarily assumed those risks. Nevertheless, the doctrine is no longer a complete bar to a plaintiff’s recovery; it merely affects the scope of the duty owed by the defendant. That is, a defendant is said to owe a duty to the plaintiff only to make things as safe as they appear to be; the plaintiff assumes the known risks of the activity performed, while the defendant retains a duty to protect the plaintiff against unknown dangers.
Application of this modern variant of the assumption of risk doctrine has bedeviled the Second Department for years. That court has frequently applied the doctrine to relieve defendants of their potential tort liability arising from accidents during sports events. But for over a decade, members of that court have written separately to express their dissatisfaction with the modern doctrine’s frequent application. In their view, the doctrine too frequently excuses a property owner from its obligation to maintain its sport facilities, eliminating any tort-induced incentive to prevent those facilities from falling into a state of disrepair.
The Second Department was concerned enough about the doctrine’s application that, in 2018, a panel granted leave to appeal to the Court of Appeals from a decision granting summary judgment for a defendant on the basis of assumption of risk. Court of Appeals review in that case was frustrated when the parties withdrew the case after filing their appeal. This case provides the next opportunity for high court review.
Plaintiff in this case was injured while playing football on a field owned by defendant, a school district. There was testimony that plaintiff was aware of irregularities in the field; there was also testimony that the defendant failed to take meaningful steps to maintain the field in proper condition. Supreme Court granted defendant summary judgment and grudgingly dismissed the action on the ground that plaintiff assumed the risk of his injuries. A four-judge panel of the Second Department affirmed, with one judge dissenting. The dissenter cited his own dissatisfaction with the doctrine and the dissatisfaction expressed by other judges of the Second Department, and called on the Court of Appeals to clarify this area of the law.
The Court of Appeals granted leave to appeal.