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Assumption of the Risk

Jul 12, 2013

Now that the summer season has arrived, residents in New York are eager to enjoy the warm temperatures and long days by participating in sporting and other recreational activities.  This might consist of playing tennis, golf, baseball/softball, soccer or simply by hiking, bicycling, swimming, sailing, etc.  Of course, whatever the activity, there is always the potential for being injured or incurring property damage.

Several years ago, two friends, named Kapoor and Amand, decided to play a round of golf.  During play on the first hole, Kapoor’s ball landed in the “rough”.  Without waiting for his friend to locate the ball, Armand went to look for his ball on the fairway.  Meanwhile, Kapoor found his ball in the “rough” and, without calling “fore” or other warning, proceeded to hit his ball. In golf terminology, the ball was “shanked” and struck Amand, who was on the fairway, in his left eye, resulting in a retinal detachment and loss of sight.  A personal injury lawsuit then ensued between these two former friends.

The case ultimately reached the Court of Appeals, New York’s highest appellate court, which affirmed dismissal of Armand’s personal injury lawsuit on the basis of a long recognized legal doctrine known as the “primary assumption of the risk”.  In essence, this principle of law applies in situations where a person engages in certain sporting or recreational activities and thereby “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”.  This principle of law relieves another participant in the activity from a duty to use reasonable care, which is the general standard governing our conduct toward others.  In most instances, if someone causes personal injury to another, to whom they owe a duty to exercise due care, damages may be recovered in a lawsuit.  Negligence on the part of the injured party would not preclude recovery, but would reduce the damages in proportion to such comparative fault.

Unlike the general rule in negligence cases, the concept of “primary assumption of risk” serves as a complete bar to any recovery for personal injuries.  It is restricted to particular athletic and recreational activities because it promotes “free and vigorous” participation in such activities and “fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners” from liability.  There are exceptions to this rule.  A participant does not assume the risk of reckless or intentional conduct or concealed or unreasonably increased risks.  However, in the case involving Kapoor and Amand, the Court of Appeals ruled that the failure to warn of the intent to hit the ball from the “rough” did not amount to intentional or reckless conduct.  The Court concluded that being hit without warning by a “shanked” shot while searching for one’s own ball “reflects a commonly appreciated risk of golf”.  

During my judicial career, I encountered several interesting cases involving “primary assumption of risk”.  In one case, injury resulted from a softball player sliding into second base contrary to league rules.  The injured party claimed that the actions of the offending player constituted reckless behavior and an unreasonably increased risk, but the jury disagreed and returned a verdict dismissing all claims. 

In another case, a student at Hobart College sustained serious injuries when riding a mountain bike, at night, in an area described as a “desired pathway” on campus, when he struck a root between two trees.  A personal injury action was commenced against the college and the company that had contracted to maintain the grounds.  An appellate court ultimately ruled that “a jury could reasonably find that a tree root is not necessarily an inherent feature of a path adjacent to trees”.  Therefore, “primary assumption of the risk” did not apply in this case, but rather the general rule of comparative negligence.  The court concluded that because the college and contractor owed students a duty to keep campus pathways in a reasonably safe condition, a jury would be required to determine if the defendants breached this duty, and if so, the extent to which the student’s decision to ride between trees constituted negligent or culpable conduct on his part, thereby reducing the amount of damages.

Although Hobart College was unsuccessful in their efforts to establish “primary assumption of risk” on the part of the student, dismissal of the case against the college was affirmed based upon a New York statute, which absolves “an owner, lessee or occupant of premises” from liability for injuries on their property.  General Obligations Law, section 9-103, provides that there is no duty of care or duty to warn of hazardous conditions to those using such property for one of a long list of enumerated outdoor activities, including hunting, fishing, boating, cross country skiing, hiking and, relevant to the Hobart College case, bicycle riding.  Again, this is a policy on the part of New York to promote participation in outdoor activities, but at the same time, to protect property owners from liability for personal injury.

If a claim is made against you by an injured participant in a sporting or recreational activity, notify your insurance carrier.  This would include individuals with homeowner’s policies, which frequently provide personal liability coverage for acts occurring away from the home.  In addition, it may be a good idea to consult an attorney regarding your legal responsibility.  The same would be true for a participant, who was injured in a sporting or recreational event, in order to ascertain whether a potential claim would be barred by the “primary assumption of risk” doctrine, or be actionable under the general rules of negligence.

The author of this article, Raymond E. Cornelius, Esq., is a retired NYS Supreme Court Justice.  You can contact Judge Cornelius at 585-512-3504 or

For more information about our firm’s representation of those seriously injured by the negligence of others, please contact one of our personal injury litigation attorneys.


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