Outside Counsel

Fridays are Law Days (sometimes) here at Outside Counsel. Today, an important decision from the Court of Appeals on Assumption of Risk. Ladies and Gentlemen, Custodi v. Town of Amherst.

Robin Custodi was rollerblading one day when one of her skates allegedly struck a two-inch height differential where the edge of defendants' driveway met a drainage culvert that ran the length of the street, causing her to fall and fracture her hip. The defendants (the town and the adjoining property owners) moved for summary judgment, arguing that plaintiff assumed the risk of injury by voluntarily engaging in recreational rollerblading, thereby negating their duty of care to her as landowners. Supreme Court granted the motion, the Appellate Division reversed, and the Court of Appeals....

Affirmed. "As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues . In this case, plaintiff was not rollerblading at a rink, a skating park, or in a competition; nor did defendants actively sponsor or promote the activity in question."

Frankly, I think they got this one wrong. Assumption of Risk doctrine in New York has become such a confusing muddle that it may be time for the legislature to step in and straighten it out (and you know how I feel about the New York State Legislature). Suppose, for example, that the plaintiff was a runner, and was running in the Buffalo Marathon. If she tripped and fell on a raised curb, wouldn't it be correct to say that she'd assumed that risk in undertaking the marathon? (It's happened to me-- the race picture is gory, but I by god finished.) Now let's say that the plaintiff was a runner, but instead of participating in a race she was running along a portion of the street that was on the marathon course. She elected to engage in the activity, the risk inherent in that activity would of course be known to her--

Here's how the Court reasoned it:

Since the adoption of CPLR 1411, we have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have "enormous social value" even while they may "involve significantly heightened risks"? Hence, the continued application of the doctrine "facilitate[s] free and vigorous participation in athletic activities", and fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from "potentially crushing liability" .
Consistent with this justification, each of our cases applying the doctrine involved a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue. In Morgan, for example, we dismissed claims by a bobsledder injured on a boblsed course, and by two students who were injured while attending martial arts classes . Similarly, we applied assumption of the risk to bar claims by plaintiffs who suffered injuries while participating in collegiate baseball ; high school football; recreational basketball on an outdoor court; professional horse racing; speedskating on an enclosed ice rink (see ; and a round of golf at a golf course.
In contrast, in Trupia we recently declined to apply the assumption of the risk doctrine to a child who was injured while sliding down a bannister at school. Based on the tension that exists between assumption of the risk and the dictates of CPLR 1411, we clarified that the doctrine "must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation". We noted that the injury-causing activity at issue in Trupia ? horseplay ? did not render the school worthy of insulation from a breach of duty claim, as it was "not a case in which the defendant solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity has been called to account in damages".

So if I am playing hoops at Delaware Park and break my ankle, I assumed the risk, but if I trip and fall twenty feet away while running on the Ring Road in the Jog for the Jake I didn't? This is madness. As lawyers we are supposed to be able to predict outcomes. Who could have predicted that rollerblading is more like sliding down a bannister than playing pick-up basketball?

Source: http://outsidethelaw.blogspot.com/2012/11/fridays-are-law-days-sometimes-here-at.html

hologram pulitzer prize winners nfl 2012 schedule gmail down ryan oneal file taxes online tupac shakur