Has plaintiff assumed the risk? Understanding the development of the primary assumption of risk defense and the ambiguity of “athletic and recreative activities”

In its simplest form, a plaintiff who voluntarily participates in a sporting or recreational event is considered to have consented to those commonly-appreciated risks that are inherent in and arise from participating in the activity.  Morgan v. State, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 207 (1997).  Primary assumption of risk has been applied to a multitude of sporting and recreational activities, including football, baseball, softball, stickball, basketball, martial arts, paintball, weightlifting, and go-cart riding, among others.  However, the defense has routinely been limited to cases involving athletic or recreational activities sponsored or enabled by defendants.  Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist.,14 N.Y.3d 392, 901 N.Y.S.2d 127 (2010). In other words, courts have consistently declined to apply the primary assumption of risk defense to cases involving leisure or non-sporting/recreational activities.

For example, in Trupia, a minor plaintiff injured himself sliding down a banister during a school summer program. There, the Court of Appeals held that the incident stemmed from nothing more than “horseplay,” and there was no compelling public policy justification to permit the expansion of the assumption of risk defense. The Court posited that the most persuasive argument in support of the defense was its social utility, noting that “athletic and recreative activities possess enormous social value.” The concurrence, however, took issue with the majority’s lack of guidance as to the types of activities to which the doctrine of primary assumption of risk applies.

Two years later, in Custodi v. Town of Ameherst, 20 N.Y.3d 83, 957 N.Y.S.2d 268 (2012), the Court of Appeals declined to apply the defense in a case where a plaintiff was injured while rollerblading in front of a homeowners’ driveway.  The Court implicitly focused on the public policy considerations discussed in Trupia, and expressed that “[a]s a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.”  

In the twelve years that have elapsed since Trupia, the Court of Appeals has yet to provide greater clarity on the activities considered “athletic” or “recreative.” Rather, recent cases indicate that the defense will apply so long as the activity in question has some indicia of “social value” and occurs at a designated venue.

For example, the defense did not apply to injuries sustained during a game of manhunt because the activity “is not the sort of socially valuable voluntary activity that the doctrine seeks to encourage.”  It was similarly inapplicable to injuries sustained when a plaintiff was thrown from a trampoline at a private residence because the activity “is not the type of socially valuable voluntary [sport or recreational] activity that the doctrine seeks to encourage.”   

In contrast, the defense applied to injuries stemming from the recreational use of an airport when a plaintiff was unsuccessful in his attempt to take off from the runway.   It also applied where a plaintiff was injured when she stepped onto a treadmill at her gym that another member had vacated but did not turn off.  

The implication of the Trupia and Custodi decisions signals the intention of New York Courts not to allow broad application of the defense to activities other than sporting or recreational ones that occur at designated areas. However, it remains to be seen whether the Court of Appeals will further clarify what constitutes recreational as opposed to leisure activities within the scope of the primary assumption of risk defense.