Assumption of the Risk Does Not Extend to Wet Bowling Shoes (NY)

 

The assumption of risk doctrine, which we have discussed in previous posts, bars a claim where the plaintiff is injured due to a risk that is inherent in or arises out of the nature of the activity the plaintiff is engaged in at the time of the accident. Typically, this applies to sporting activities. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. A participant does not assume the risks that result in a dangerous condition over and above the usual dangers inherent in the activity at issue.

What qualifies as a dangerous condition over and above the usual dangers inherent in an activity is not easily ascertained. In Ortiz v. Ciolfar Bowl, Inc. http://pdf.wcmlaw.com/pdf/Ortiz.pdf , the First Department refused to apply the doctrine to bar a plaintiff’s claim.

There, the plaintiff slipped and fell at the defendant’s bowling alley as she started to throw her ball. Plaintiff claimed that her shoes had become wet since she had twice walked over a soaking wet carpet near the establishment’s entrance. Never mind that plaintiff chose to walk outside, twice, while it was raining, and returned a short time later to resume bowling.

The lower court denied the defendant’s motion and the First Department affirmed, finding a question of fact as to whether plaintiff knew her shows were went when she approached the lane and the heightened risk of bowling with wet shoes.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.