With the weather finally warming up in the northeast, summer, along with its mainstays of barbeques, baseball and swimming, have increasingly become topics of conversation. With each of these American traditions comes the potential for liability. The Second Department recently dealt with the defense of assumption of risk in swimming.

In Rueckert v. Cohen, 2014 NY Slip Op 02918 (2d Dept. 2014), the plaintiff was conducting a swimming lesson when another swimmer’s foot unintentionally struck the back of her right knee while turning within the same lane. The plaintiff brought suit against this other swimmer, claiming personal injuries allegedly sustained as a result of negligence as well as assault and battery.

The Second Department found that the plaintiff voluntarily entered the pool, thereby assuming the risk and consenting to the commonly appreciated risks inherent in swimming. The Court granted the defendant summary judgment, holding that incidental contact (the plaintiff failed to raise a triable fact as to the defendant’s actions being reckless or intentional) between persons confined to a pool lane during a free swim is a commonly appreciated inherent risk of swimming.

Rueckert provides swimmers peace of mind to enjoy their time in the pool, free from thoughts of potential liability. Swimmers need not worry whether their normal swimming activities may result in liability for injuries that may occur if they come into contact with another swimmer.

Thanks to Bryan Lipsky for his contribution to this post. If you have any questions, please contact Paul at .