In Levy v. Town Sports International, Inc., the First Department demonstrated just how narrowly the doctrine of assumption of risk is applied to bar a negligence claim. The assumption of risk doctrine bars a participant injured while engaged in a sport or recreational activity from bringing suit because the participant 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. The doctrine does not apply, however, to unassumed, concealed, or unreasonably increased risks.
In Levy, the plaintiff, who recently had surgery and suffered from osteoporosis, was directed by her personal trainer to perform jump repetitions on an exercise ball. After one too many jumps, she fell and was injured. The defendants were granted summary judgment on the basis that plaintiff assumed the risk of injured.
The First Department reversed, finding that an issue of fact as to whether the trainer knew of the recent surgery and osteoporosis, and whether he increased the risk of injury to plaintiff by having her perform an advanced number of repetitions. The court also found that the trainer may have increased the risk of injury by not properly positioning himself to guard her against a fall.
Thanks to Gabe Darwick for his contribution.
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