November 2012 Assumption of Risk Update

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New York State Court of Appeals in Custodi v Town of Amherst, et. al., 2012 NY Slip Op 07225 [Graffeo, J.], finds that assumption of the risk did not apply to a plaintiff that was injured while rollerblading in public.

Robin Custodi was an experienced roller blader who fell when her roller blade struck a 2 inch height difference between the apron to a driveway and the street. As a result, Custodi sustained a fractured hip and other serious injuries. Custodi then brought a premises liability complaint alleging that the improper height differential was a defect on the premises and the cause of her fall. The defendant argued that one of the risks inherent in rollerblading is falling and that Custodi assumed those risks when she voluntarily chose to take part in this particular sporting activity. The trial court agreed with the defendants and dismissed the premises liability complaint holding that Custodi assumed the risk of injury. On appeal, the Appellate Division, Fourth Department reversed, finding that this assumption of the risk should not apply to the casual roller blader. Thereafter, the defendant appealed to the Court of Appeals.

Assumption of risk is an affirmative defense which bars a plaintiff from recovery against a negligent party if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks inherent to the dangerous activity in which he or she was participating at the time of the injury.

The Court of Appeals ruled that the case should be permitted to go forward because application of the assumption of risk defense should be limited to cases involving more formal sporting or recreational activities sponsored by a defendant or that take place in specific locations, i.e. arenas, ball fields, etc. The court went on to find that application of this legal doctrine would deprive the seriously injured Mrs. Custodi of her day in court and severely eradicate the responsibility of property owners to the general public for keeping their premises safe for such common activities as running, jogging, bicycling or rollerblading. Indeed, had this case involved a person jogging who stubbed their foot on this 2 inch tripping hazard and that jogger’s recovery had been barred by assumption of the risk, it would indeed be black day for New York jurisprudence as many joggers would be in danger of injury every time they went running without a method of recourse. It would permit property owners to allow their properties to fall into disrepair which would drastically increase the danger to pedestrians, especially the elderly. The court went on to find that because the defendants did not support her rollerblading (like a sponsored event) and did not intentionally provide a place for it (like an rink), that there should be no exception for them from the general rule that properties should be kept in a reasonable safe condition for public safety.

In the end, the Court of Appeals appears to be attempting to strike a delicate balance between maintaining the duties the public is responsible for while also limiting those duties to cases where a risk truly was assumed by the participant. A truly difficult line to walk. To read the full decision please click here.