New York court adds to the confusion re assumption of the risk

Long time readers of this blog will remember that I have criticized New York courts on more than one occasion for their sloppy analysis when it comes to the concept of assumption of the risk. See here and here. Now comes news of yet another case from New York that adds to the confusion. In a case called Ballou v. Ravena-Coeymans-Selkirk School District (available here), the court held that although a cheerleader assumes some risk when practicing stunts with her squad, her participation in the potentially dangerous activity is not a complete defense by her school district for liability for the serious injuries she suffered and that "[s]chools are required to exercise reasonable care to protect student athletes from unassumed, concealed or unreasonable increased risks." The decision on this case may be irrelevant now that, just a few days ago, NY's highest court held that assumption of the risk was not a valid defense if the plaintiff is a minor. See here. But to the extent that it adds to the debate on the issue of assumption of the risk, it follows the wrong type of analysis I have criticized in the past. What I have argued in the past is that courts in NY use the "primary assumption of the risk" analysis to support the conclusion that a 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). The Ballou case reported today follows this line of reasoning when it holds, as quoted above, that "[s]chools are required to exercise reasonable care to protect student athletes from unassumed, concealed or unreasonable increased risks." Note what this statement actually says. It says that under the circumstances of the case the plaintiff can support a claim that the defendant has a duty to exercise reasonable care. In other words, once again, the court is using the language of assumption of the risk (supposedly an affirmative defense) to reach a conclusion related to an element of the prima facie case. The issue in the case was whether the defendant had a duty, not whether the plaintiff assumed the risk. Until NY courts gets this distinction straight, they will continue to make the same mistake. For more on the story, go to Law.com.