Following the lead of its sister appellate court (see, "Rollerblader Didn't Assume Risk of Injury, Says NY Appeals Court"), New York's Appellate Division, First Department (which handles appeals from the courts in Bronx and Manhattan) recently held that the notion of "play at your own risk" (or, in legalese, "assumption of the risk") does not act as am inherent bar to a negligence claim in New York.

In Ashbourne v. City of New York, the plaintiff was injured while rollerblading after her skates got caught on a "rise" or "bump" in the sidewalk. In reversing the trial court's ruling that had dismissed the case, the appellate court stated as follows:

"Although plaintiff was rollerblading, an activity one could consider to be recreational and risky, this is not a case like Anand where plaintiff and defendant were participants in an organized sporting event. Plaintiff's leisurely rollerblading on a public sidewalk does not constitute a sponsored sporting event or recreational activity for the purpose of applying the assumption of risk doctrine any more than jogging on the sidewalk would. We simply cannot say, as a matter of law, that by engaging in a form of exercise, such as rollerblading or jogging on a public sidewalk, a plaintiff consents to the negligent maintenance of that sidewalk."
Jonathan Cooper
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