In the matter of Lee v Brooklyn Boulders, LLC (2017 NY Slip Op 08660), the Second Department Appellate Division confronted, and further diminished, the applicability of the primary assumption of risk doctrine.

Plaintiff was allegedly injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats, which according to plaintiff, was covered by a piece of Velcro. Defendants moved for summary judgment dismissing the complaint and the plaintiff cross-moved to add a demand for punitive damages.  Defendants argument that plaintiff signed a liability release The Supreme Court, denied the motion and the cross motion and all parties appealed.

The Appellate Division found that contrary to the defendant’s contention, the release that the plaintiff signed was void under the General Obligations law because the defendant’s facility was recreational in nature and therefore did not bar the plaintiff’s claims.  The Court noted that by engaging in a sport or recreational activity, a participant consent to those commonly appreciated risk that are “inherent in” and “arise out of the nature of the sport generally and flow from such participation.”  Here however, the defendant failed to establish, prima facie, the doctrine of primary assumption of risk applied.  The plaintiff’s deposition testimony revealed triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the inured plaintiff accident involved an inherent risk of rock climbing.  Therefore, defendant’s motion was properly denied.  The Court also found that the Supreme Court providently exercised its discretion in denying the cross motion for leave to amend the complaint to add punitive damages.

This case illustrates that to the extent a party seeks to apply assumption of risk proactively in dispositive motions, the court will stridently parse the record for triable issues of fact.  While assumption of risk continues to endure in a comparative setting, its applicability on a primary basis is becoming fewer and further in-between.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.