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In a split decision that was handed down this past April in Grady v. Chenango Valley Central School District regarding two consolidated actions flowing from personal injuries that were sustained by students in the course of sporting activities, New York's Court of Appeals solomonically reversed the lower court's order granting summary judgment to one school district on the grounds that a triable issue of fact remained as to the school's comparative negligence in causing the accident, while affirming the trial court's order granting summary judgment to a second school on the grounds that the plaintiff student had assumed the risk inherent in the activity and was therefore barred from recovering as a matter of law.
Confused as to how to apply this rule to other cases involving sporting activities?
You're certainly not alone.
What the Court of Appeals Held in Grady
In rendering its split decision in these two companion actions, the majority held as follows:
The primary assumption of risk doctrine, as articulated by Judge Cardozo, is based on the premise that " '[o]ne who takes part in . . . a sport accepts the dangers that inhere in it so far as they are obvious and necessary' " (Morgan v State of N.Y., 90 NY2d 471, 482-483 [1997], quoting Murphy v Steeplechase Amusement Co., 250 NY 479, 482-483 [1929]). Enactment of a comparative negligence standard in 1975, however, required this Court to reexamine the "fit," or "continued viability," of this long-standing common law assumption of risk doctrine (see Morgan, 90 NY2d at 483). The relevant statute provides that "[i]n any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages" (CPLR 1411). Though we have acknowledged that the assumption of risk doctrine may not "sit comfortably" within the landscape of comparative fault, it remains in full force in the limited context of athletic and recreative activities (Trupia, 14 NY3d at 395).
Our justification for retaining the doctrine in these circumstances is clear: because "athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks," we have "employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise" (id. at 395; see Custodi v Town of Amherst, 20 NY3d 83, 87 [2012] [continued application of the assumption of risk doctrine "fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from 'potentially crushing liability' "], quoting Bukowski v Clarkson Univ., 19 NY3d 353, 358 [2012]). At the same time, we are mindful that "application [of the assumption of risk doctrine] must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to 'any action to recover damages for personal injury, injury to property, or wrongful death' " (Trupia, 14 NY3d at 395-396, quoting CPLR 1411 [emphasis in original]). Accordingly, assumption of risk in this context "is no longer treated as a defense to the abandoned contributory negligence equation" (Morgan, 90 NY2d at 485). Rather, the doctrine defines "the standard of care under which a defendant's duty is defined and circumscribed 'because assumption of risk in this form is really a principle of no duty, or no negligence and so denies the existence of any underlying cause of action' " (id., quoting Prosser and Keeton, Torts § 68 at 496-497 [5th ed 1984]; see Trupia, 14 NY3d at 395 [doctrine "limit(s) duty through consent—indeed it has been described as a 'principle of no duty' rather than an absolute defense based upon a plaintiff's culpable conduct"]).
In these limited circumstances, "primary assumption of the risk applies when a consenting participant in a qualified activity 'is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks' " (Custodi, 20 NY3d at 88, quoting Bukowski, 19 NY3d at 356; see Turcotte v Fell, 68 NY2d 432, 439 [1986] [where "the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty"]). Moreover, "[i]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Maddox v City of New York, 66 NY2d 270, 278 [1985]). A participant is not, however, deemed to have assumed "risks that are concealed or unreasonably enhanced" (Custodi, 20 NY3d at 88; see Bukowski, 19 NY3d at 356). The two cases we consider here provide an opportunity to apply these principles in the context of two quite different organized practice drills for high school athletic teams.
Judge Rivera's Vigorous Dissent
In a scathing dissent that called the majority to task for advocating a manifestly inconsistent and confused standard, Judge Rivera stated, in pertinent part, as follows:
It's time we correct the errors of the past and abandon the implied assumption of risk doctrine that the Court has retained despite the Legislature's unequivocal abolition of contributory negligence and assumption of risk as complete defenses. New York is a comparative fault jurisdiction. Under that tort rule, the question of a defendant's liability should be submitted to the trier of fact with an appropriate charge on comparative culpability so that any damage award may be assigned based on each party's fault, in accordance with CPLR Article 14-A. Therefore, the Appellate Division orders in the respective appeals before us should be reversed and the cases decided at trial because the defendants' liability cannot be resolved on summary judgment. Although the majority reaches the correct outcome in Grady, it does so by applying several of the Court's prior holdings that misinterpreted CPLR 1411's plain text and thereby diminished the statute's intended purpose. Under CPLR 1411, assumption of risk is a basis to reduce the plaintiff's damage award, not to bar relief from injuries caused by a defendant's tortious conduct ...
Shortly after the Legislature passed CPLR 1411, the Court, despite the statute's plain text and legislative history, breathed life into the old contributory negligence tort regime by resurrecting a vestigial form of implied assumption of risk labeled "primary" assumption of risk, resulting in a retention of the common-law distinction between implied and express assumption of risk ...
As I discuss, and as plaintiff Grady contends, CPLR 1411 does not lend itself to this interpretation and we should no longer continue to hold that it does. Moreover, because the doctrine leads to results at times difficult to harmonize, and the policy concerns that animated the Court's jurisprudence have proven unfounded, it is time to abolish the last remnant of the contributory fault era embodied in this vestigial "primary" assumption of risk doctrine ... A review of the Court's seminal decisions on assumption of risk confirms that the Court has misapplied CPLR 1411 by retaining a bar to recovery in contravention of the text and the legislature's intent that fact finders apportion liability commensurate with the culpability of each party's conduct ...
As this discussion reveals, the Court has constructed a strange judicial artifice that assumption of risk limits the defendant's duty to a plaintiff based on the plaintiff's consent to participate in inherently-risky conduct. Practically, however, the Court has treated assumption of risk as a "principle of no duty" (Trupia, 14 NY3d at 395), making passing reference to the event sponsor or venue owner's minimal duty of care to the participants. The Court's approach is irreconcilable with the statutory language and the intended goal of providing a path to recovery for plaintiffs partially responsible for their injury (see Hobson, 39 NY2d at 487, 489).
The Takeaway
At the end of the day, we are left with the majority's holding, which unfortunately, sheds no further light nor clarity to assessing the viability of a personal injury claim resulting from injuries sustained during a sporting activity.
