Friday, April 9, 2010
New York court holds assumption of the risk does not apply against children
Last Tuesday, in a case called Trupia v. Lake George Central School District, New York's highest court refused to recognize the doctrine of primary assumption of risk as a defense against liability for injuries suffered by a 12 year old. The court rejected the attempt of the Lake George Central School District to amend its answer to a negligent supervision suit to assert assumption of risk in a case where a 12-year-old student was injured when he fell while sliding down a bannister, as he had on earlier occasions. According to a report in Law.com, the court wrote that allowing the amendment would edge the state back toward a time when plaintiffs' contributory negligence was widely invoked by defendants to bar liability for injuries. This being so, the court should have abandoned assumption of the risk as a defense entirely as so other jurisdictions have done. But wait! Assumption of the risk had been abandoned in NY. In fact, the state legislature abolished contributory negligence and assumption of risk as absolute defenses and adopted an approach under which awards are apportioned according to the culpable conduct of the parties. However, assumption of risk survived as a bar to recovery for organized sports and recreational activities, such as skiing or horseback riding, where participants freely assume a known risk, negating the duty of defendants to safeguard them. I have criticized that aspect of the application of the assumption of the risk doctrine by NY courts here and here. In Trupia, the court reaffirms its approach to allow assumption of the risk as a defense in certain cases while denying its use to the facts of that specific case.