Wednesday, May 20, 2009

New York court gets assumption of the risk wrong, again.

Some time ago, I argued that an appellate court in New York got it all wrong when applying the concept of "assumption of the risk" in a case involving an injury on a golf course. (See here.) Now comes news of a new case, this time involving a skiing accident, in which a different division of the court makes the same mistake. Of course, it is not necessarily the court's fault in that it is simply applying the precedent in the jurisdiction, but at some point, someone should realize the precedent makes no sense.

Once again, the court was applying the so-called "primary assumption of the risk" doctrine. In this case, a 17 year old skier was injured while attempting to execute a maneuver over a rail on the "park" section of a ski area. He sued arguing that the rail posed a concealed danger to skiers because it was not "skirted," meaning its vertical support bars were not covered or cushioned. However, a unanimous 3rd Department panel held that under the doctrine of primary assumption of risk, the defendant's obligation was to make the conditions of performing an inherently risky maneuver like rail sliding as safe as they appear to be, not as safe as it could be.

That is the problem. The court is essentially holding that the plaintiff is unable to satisfy the prima facie element of duty. This has nothing to do with assumption of the risk, which is a an affirmative defense based on an evaluation of the plaintiff's conduct. Using the phrase "primary assumption of the risk" to refer to cases in which the issue is whether there is a duty is confusing (at least).

Here is another example: "If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty." Again, if the conclusion is that the defendant has performed its duty, then the court is simply saying that the plaintiff can't establish the element of breach of duty, which, again, has nothing to do with assumption of the risk.

Yet another example: "Claimants presented no evidence that the industry or any regulating body had adopted any standards regarding the use of skirting on rails or that ski parks normally adhered to the practice of placing skirting on all rails, including low difficulty rails such as that at issue." Here the court is going back to the question of duty. By looking at the lack of uniformity in the industry custom, the court is saying the plaintiff has no evidence to support the duty he wants the court to impose on the defendant... and, do I need to say it again?... this has nothing to do with assumption of the risk....

The case is called Martin v. State of New York.

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