It is certainly true that the primary assumption of the risk doctrine took a serious hit with the Court of Appeals' decision in Trupia v. Lake George Central School District, which held that a child's risky behavior does not inherently spell the end of a negligent supervision case under New York law where "the risk is unassumed, concealed, or unreasonably increased." (Miskanic v. Roller Jam USA, Inc. 71 AD3d at 1103, citing Morgan v. State, 90 NY2d at 484).
In the context of many sporting activities, however, "[A] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk because, as an appeals court explained earlier this year, he "consents to those commonly-appreciated risks which are inherent in and arise out of the nature of such activity generally, and which flow from the participation." (Reidy v. Raman, 85 AD3d 892 [2d Dept. 2011].
So how does a plaintiff that was injured while engaged in a sporting activity get around the primary assumption of risk doctrine?
As noted in Perez v. Nassour, one way to circumvent this defense is by showing that the "defendant created a unique condition "over and above the usual dangers inherent in the sport," such as by failing to follow its own internal policies, which, according to the court, may give rise to an "unassumed, concealed or unreasonably increased risk." Diagle v. West Mountain, 289 AD2d 838 [3d Dept. 2001]. Some examples of this include where the defendant failed to close a tubing run in inclement weather, or another defendant's failure to assure that a catcher was wearing a mask during baseball tryouts.
And, under those circumstances, a negligent supervision claim would stand a strong chance of surviving a summary judgment motion - at least under the current state of New York law.