In Fenty v. Seven Meadows Farms, Inc.,et al., the Appellate Division, Second Department affirmed summary judgment on the grounds that the plaintiff assumed the risk of falling off a horse while riding.
The Appellate Division held that under the doctrine of primary assumption of the risk, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation. Further, if the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty.
An awareness of a risk is to be assessed against the background of the skill and experience of the particular plaintiff. In Fenty, the record demonstrated that plaintiff had sufficient skill and experience to appreciate the risk of falling off a horse while riding.
The Court ultimately held that the risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding. While a party will be found not to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks, a party does assume the risk of an overall obvious risk. Thus, a person should expect to get wet when jumping in the ocean.
Special thanks to Johan Obregon for his contribution.
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