Assumption of Risk as a Separate Defense in New York

The assumption of risk defense in New York State is a legal doctrine that can prevent an injured plaintiff from recovering damages. This defense is based on the notion that the plaintiff voluntarily and knowingly assumed the risks inherent in an activity. Assumption of risk can be a complete bar to recovery or limit the amount of recoverable damages, and it applies in various contexts, including sports, recreational activities, and other inherently risky situations.

Understanding assumption of risk is crucial in personal injury cases, as it is a common defense raised by defendants and can significantly impact the outcome of a case and the plaintiff's ability to recover compensation. Plaintiffs must be aware of the potential application of assumption of risk to their case, and understanding the different categories of assumption of risk is essential for assessing the strength of a case. Plaintiffs should be prepared to counter the assumption of risk defense with the help of experienced attorneys.

Personal injury attorneys like us play a vital role in defeating the assumption of risk defense. We can identify the specific category of assumption of risk applicable to a case and can develop strategies to challenge the validity of assumption of risk defenses. We can argue that the plaintiff's injury was unforeseeable or outside the scope of the assumed risk and challenge the enforceability of express assumption of risk waivers. Lastly, we can demonstrate that the defendant's conduct was reckless or intentional, rendering assumption of risk inapplicable. With these counter-arguments, we can maximize compensation for plaintiffs by defeating or limiting the impact of assumption of risk defenses.

Categories of Assumption of Risk in New York

In New York, there are three main categories of assumption of risk: primary assumption of risk, express assumption of risk, and implied assumption of risk.

Primary Assumption of Risk

Primary assumption of risk is defined as a situation where the plaintiff voluntarily participates in an activity with known risks, and the defendant owes no duty to protect the plaintiff from inherent risks. In this case, the plaintiff is deemed to have consented to the risks by participating. Primary assumption of risk is commonly applied in contact sports, such as football, hockey, and boxing, as well as non-contact sports with inherent risks, like skiing and gymnastics. Spectators at sporting events may also be subject to primary assumption of risk. Outside of sports, primary assumption of risk can apply to certain recreational activities, such as skydiving or bungee jumping, and may also apply in some employment contexts with inherent risks, like firefighting or construction work.

Express Assumption of Risk

Express assumption of risk occurs when the plaintiff explicitly agrees to assume the risks associated with an activity, typically through a written contract or waiver. The plaintiff acknowledges understanding of the risks and voluntarily assumes them. Written waivers are common in recreational activities, such as gym memberships, amusement parks, and extreme sports. These waivers must be clear, unambiguous, and specific to the risks involved, and may not be enforceable if they violate public policy or are unconscionable. Examples of activities with express assumption of risk include renting ski equipment and signing a waiver at a ski resort, participating in a guided whitewater rafting trip after signing a release form, and joining a fitness center and agreeing to a liability waiver as part of the membership contract.

Implied Assumption of Risk

Implied assumption of risk is when the plaintiff's conduct demonstrates a willingness to accept the risks of an activity, without an explicit agreement or waiver being signed. The plaintiff's actions suggest an understanding and voluntary assumption of the risks. Implied assumption of risk is also referred to as secondary assumption of risk, distinguishing it from primary assumption of risk. Secondary assumption of risk is a form of comparative negligence, where the plaintiff's recovery may be reduced based on their degree of fault. Implied assumption of risk does not require a written agreement; instead, the plaintiff's conduct and knowledge of the risks are the key factors. The defendant must prove that the plaintiff's actions demonstrated a willingness to assume the risks. Situations where the plaintiff may have voluntarily assumed risk include choosing to ride a mechanical bull at a bar, participating in a pick-up basketball game, and assisting a friend with home repairs, despite knowledge of the potential hazards.

Impact on Plaintiff's Recovery

The type of assumption of risk can significantly impact the plaintiff's ability to recover damages. Primary and express assumption of risk can bar recovery completely. If primary assumption of risk applies, the defendant owes no duty to the plaintiff, and if express assumption of risk is valid, it can absolve the defendant of liability. In these cases, the plaintiff may be unable to recover any damages. Implied assumption of risk, on the other hand, allows for comparative fault assessment. The plaintiff's recovery can be reduced based on their degree of fault, and the defendant must prove the plaintiff's voluntary assumption of risk. The jury determines the percentage of fault attributable to the plaintiff. Under implied assumption of risk, the plaintiff may not recover the full value of their claim, as damages awarded may be reduced in proportion to the plaintiff's fault. For example, if the plaintiff is found 30% at fault, their recovery would be reduced by 30%. However, the plaintiff may still recover partial damages, unlike in cases of primary or express assumption of risk.

Combating Assumption of the Risk Defenses

Overcoming primary assumption of risk defense involves demonstrating that the injury was unforeseeable for the activity by arguing that the specific injury sustained was not a typical or inherent risk of the activity, presenting evidence that the plaintiff could not have reasonably anticipated the particular injury, and showing that the defendant's conduct or the conditions of the activity were unusually dangerous or unexpected. For example, a skier suffers a severe head injury due to an unmarked and concealed hazard on the ski slope. Another approach is arguing that the defendant acted outside the scope of the activity by demonstrating that the defendant's conduct was unrelated to the inherent risks of the activity, proving that the defendant's actions were reckless, intentional, or grossly negligent, and showing that the defendant violated safety rules, regulations, or industry standards. An example would be a sports coach encouraging a player to engage in an extremely dangerous and unnecessary drill, resulting in injury.

Challenging the validity of express assumption waivers can be done in several ways. For recreational activities requiring payment, one can argue that waivers for paid recreational activities violate public policy, demonstrate that the plaintiff had no meaningful choice but to sign the waiver to participate, and show that the waiver is unconscionable or unfairly shifts the risk to the plaintiff. An example is a gym requiring members to sign a broad liability waiver to use the facilities, which they have already paid for. Improper or invalid waivers can be challenged by questioning the clarity and specificity of the waiver language, arguing that the waiver is ambiguous or does not adequately describe the risks involved, and demonstrating that the plaintiff did not have an opportunity to read or understand the waiver before signing. For instance, a waiver for a guided hiking tour may be written in complex legal language and fail to clearly outline the specific risks. It is important to note that waivers do not protect against reckless or intentional conduct. In such cases, one can argue that the defendant's conduct was reckless or intentional, making the waiver unenforceable, demonstrate that the defendant's actions went beyond ordinary negligence and disregarded the plaintiff's safety, and show that the defendant had knowledge of a dangerous condition but failed to address it or warn the plaintiff. A bungee jumping operator knowingly using faulty equipment, resulting in a participant's injury despite the signed waiver, is an example of this.

Experienced personal injury attorneys like us play a crucial role in combating assumption of risk defenses. We can identify the specific category of assumption of risk applicable to the case, develop strategies to challenge the validity or applicability of the defense, gather evidence to support arguments against the assumption of risk defense, and present compelling arguments to the court or jury to defeat or limit the impact of the defense. Moreover, we can maximize compensation for injuries by thoroughly investigating the case to uncover all potential sources of liability, identifying and pursuing all available damages (including medical expenses, lost wages, and pain and suffering), negotiating with insurance companies and defense attorneys to secure the highest possible settlement, and preparing the case for trial and presenting a strong argument to the jury to maximize the award.

Should you need legal representation in a personal injury case with an assumption of risk aspect, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected]. We are located in Midtown, Manhattan.