About 1-1/2 years ago, I wrote about whether "Play at Your Own Risk" is a valid concept under New York law. In that article, I described how in many, if not most, circumstances, New York's courts will not bar completely a claim on these grounds (which, in legalese is called "primary assumption of risk") because New York is a comparative negligence state, which means that as a general rule, each party is supposed to bear its own proportionate share of responsibility for an accident.

Thus, it is not suprising that one of NY State's appellate courts reinstated a personal injury claim by a rollerblader who tripped and fell over a mis-leveled portion of driveway where it met with the curb and roadway, leaving a full 2" height differential.

In reversing the trial court's order dismissing the case, the Custodi v. Town of Amherst court's reasoning is instructive:

"[Defendant] established that plaintiff was an experienced rollerblader and that she was aware that tripping and falling are risks inherent in the activity, which are increased when rollerblading on uneven surfaces such as sidewalks ... [but] it cannot be said that the height differential between defendants' driveway apron and the curb was a "known, apparent or reasonably foreseeable consequence" of rollerblading on a paved roadway, sidewalk, or driveway (Turcotte, 68 NY2d at 439), nor can it be said "that plaintiff was aware of the [height differential] and the resultant risk" presented thereby (Lamey v Foley, 188 AD2d 157, 164). To the contrary, we conclude that the height differential between defendants' driveway apron and the curb " created a dangerous condition over and above the usual dangers that are inherent in the sport' " of rollerblading ...

"We cannot agree with defendants that the height differential between their driveway apron and the curb was an open and obvious condition and that they are thereby absolved of liability. It is well settled that "the open and obvious nature of the allegedly dangerous condition . . . does not negate the duty to maintain [the] premises in a reasonably safe condition but, [instead], bears only on the injured person's comparative fault."
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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