New York has been a “pure” comparative negligence state for several decades. Even in the most extreme circumstances, the plaintiff’s comparative negligence, no matter what degree, will not bar his action. For this reason, defendants seek any opportunity to argue that plaintiff assumed the risk of injury as a basis to dismiss his claim.

Is the primary assumption of the risk defense available outside the realm of athletic activities? Does a child assume the risk of injury when engaging in horseplay like sliding down a stairway banister at his local public school?

Apparently not, according to New York’s highest court. In the case of Trupia v. Lake George Central School District, the Court of Appeals limited the use of the primary assumption of the risk defense to athletic or recreational activities. Relying on a public policy argument, the Court explained that there was no value in protecting horseplay, particularly when it involves children. In contrast, sports “possess enormous social value, even while they involve significantly heightened risks.”

An important weapon in the arsenal of the defense has been holstered when athletic or recreational activities are not involved. However, the defense bar should continue to make creative arguments to support the use of this defense in appropriate cases. Tennis anyone?

If you have any questions about this post, please contact Paul Clark at

http://www.nycourts.gov/ctapps/decisions/2010/apr10/53opn10.pdf