Thursday, November 18, 2010

New York's erroneous approach to assumption of the risk is back in the news

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, for example. The first of these cases, about which I reported on back in April of 2009 is back in the news because the Court of Appeals just heard oral arguments. I am hoping the Court corrects the mistake.The case is called Anand v. Kapoor and it is available here. My original comment about it is availble here. This is the case in which the New York state Appellate Division, Second Department, discussed the issue of whether a golfer can be liable for his conduct on the golf course if this conduct creates an unreasonable risk of harm to others. In the end, the court held that the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. As I said last year in my original post on this case, I disagree with this holding as a torts professor and as a golfer! Sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence ... unless what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy. For my full comment on the case go here. For more on the case go to the Wall Street Journal law blog.


Stephen R. Diamond said...

The court isn't just "trying" to say golfers have no duty to exercise due care when playing the game. It says it, with citation. "[t]he defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence' " (Turcotte, 68 NY2d at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]).

And that sounds right. If assumption of risk doesn't mean suspending the duty of care, then what's left of assumption of risk? You provide no room for its operation.

Your public-policy argument is effectively a policy argument against the doctrine of assumption of risk rather than an argument interpreting the doctrine. Perhaps you think public policy requires subjection to the possibility of lawsuit for mere negligence in recreational activity. Other people would say that isn't recreation. Recklessness and intentional torts are another thing, but to say a golfer is exposed to liability for an act of careless omission (at worst)is, fortunately, not the law, and suspension of liability for negligence surely isn't as irrational as you make out. Those golfers who prefer a more protected recreational existence can join a club that enforces stricter rules.

Professor Alberto Bernabe said...

Thanks for the reply. Allow me to respond to some of your comments.

First, the problem is that assumption of the risk does not mean suspending the duty of care. Assumption of the risk is an affirmative defense based on an evaluation of the plaintiff's conduct, not an attack on the plaintiff's ability to support an element of the prima facie case. That is, precisely, the distinction the court has failed to make and what the higher court should finally clarify.

Most jurisdictions have, in fact, abandoned the use of the term "assumption of the risk" when dealing with cases in which the issue is really one of duty or breach. I am hoping NY finally decides to join those other states on this.

Second, my policy argument is not against the doctrine of assumption of the risk. It is against the doctrine of primary assumption of the risk. Again, you need to make that important distinction. Primary assumption of the risk has, in fact, been abandoned by many courts and NY should do the same.

Third, as to "what is left of assumption of the risk?", ... the answer is, really, not much. Some jurisdictions still recognize what was once referred to a secondary assumption of the risk but only in few types of cases because most jurisdictions have merged the analysis of secondary assumption of the risk with the doctrine of comparative negligence. (There is also express assumption of the risk, but that is different matter.)

Finally, all that aside, we are left with the question of what analysis to use in a case where the plaintiff is involved in a recreational activity. Courts are divided on this, some saying the defendants have no duty toward other participants, while others use the typical standard of care for all negligence cases.

I would prefer to see the court adopt this second view.