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.