When do participants in recreational activities assume the risk of a particular injury? While it is well-settled that participants assume risks which are “inherent to” an activity or “perfectly obvious to” participants, litigants still struggle to decisively state whether a risk is so “obvious” or “inherent” as to bar recovery.  This stems, in part, from lawyers’ pesky habit of complicating even the most straightforward fact patterns. Does a baseball player assume the risk of getting hit by a line drive? What if he’s only seven years old? Is it his first time on the field?

Yet, the difficulty in defining which risks are assumed also stems from the fact that judges are human and, whether consciously or not, certain policy considerations inevitably filter how they view even the most straightforward factual circumstances. A policy cutting in favor of the defense bar is the interest in shielding volunteer coaches, little league organizations and recreational facilities from costly litigation given the benefit they provide to the public.  Alternatively, judges are often compelled to see cases in a different light if a young child is the claimant and are more inclined to adopt the policy of ensuring that the injured party is made whole for their injury.  While neither of these policy considerations has anything to do with the obviousness of a risk, they still often color how we (and, more importantly, judges) view these cases.  Litigating in the face of these intangible, yet no less influential factors, can feel like swimming upstream.

Fortunately, two cases recently decided by the Second Department provide guidance to attorneys seeking to mount an assumption of the risk defense. E.B. v. Camp Achim involved a fifteen year old plaintiff who was injured when he ran into a silver metal bench while playing touch football.  The court took care to note that the metal bench was 18 inches high and eight feet long.  Fundamental to the court’s decision was the child’s own testimony that he had been playing on the field for more than one hour by the time the accident occurred, was aware of the bench and voluntarily chose to play on the field regardless, and that the bench was used by the children to mark where the end zone was located.  The Second Department reversed the lower court to grant defendants’ motion for summary judgment.

Contrastingly, Lee v. Brooklyn Boulders, LLC involved a plaintiff who was rock climbing at defendant’s facility.  She was injured when she dropped down from a climbing wall and her foot landed between a gap between two mats that was covered with a piece of Velcro.  Again pointing to the plaintiff’s deposition testimony, the court held that the defendants failed to make a prima facie case, as an ssue of fact remained as to whether the mats constituted a concealed risk.

These cases convey the high value courts place on plaintiffs’ admissions regarding their own awareness of the condition which ultimately caused their injury. Defense attorneys are wise to take advantage of depositions to establish the full extent of the plaintiff’s experience in the activity, awareness of the condition at issue, and voluntary decision to partake in the activity regardless of the known risk.  The sympathy element is easier to diffuse if the plaintiff himself concedes at his deposition that he was aware of the condition but elected to participate in the activity anyway.

Thank you to Kristina Duffy for her contribution to this article.  If you have any questions or comments please contact Vito A. Pinto.