New York’s Highest Court Narrows the Assumption of Risk Defense to Tort Liability

On April 6, 2010, the New York State Court of Appeals rejected use of the assumption of the risk doctrine to nullify a school district’s duty to supervise the children within its care.¹ The ruling would likely have been uncontroversial if the majority had limited its pronouncements to those necessary to resolve the present dispute: a child cannot assume the risk of injuries from “horseplay” enabled by his teachers’ failure to supervise him. This proposition provided the basis for the unanimous judgment in Trupia v. Lake George Central School District disallowing the defense in that case. However, the court split 4-3 in its reasoning, with the minority concurrence decrying the “extended dictum” in which the majority reconceived and narrowed the defense of assumption of the risk in New York State.²

The full court endorsed the proposition that an educational institution is obligated to adequately supervise the children in its charge, who cannot “be deemed to have consented in advance to risks of their misconduct.”³ The majority went further, however, and announced that the defense of assumption of the risk is available in New York State only when it furthers the public policy goal of encouraging participation in sports and other recreational activities.⁴

In Trupia, the child in question, Luke Anthony Trupia, was attending the defendants’ summer program when he fell while sliding down a banister and sustained serious injuries. Trupia, twelve years old at the time, suffered a fractured skull and brain injury, causing retrograde amnesia. He and his father sued, alleging negligent supervision, because at the time of the accident no one was supervising the child. Following discovery, during which it was revealed that Trupia was a frequent banister joyrider, and had fallen from the railing in the past, the defendants moved to amend their answer to allege assumption of the risk as a complete defense to liability.

Assumption of the risk bars legal recovery when a plaintiff has expressly or implicitly consented in advance of an activity not to hold a defendant responsible, or consented in advance that the defendant would have no duty of care to the plaintiff. The doctrine was often equated with contributory negligence because both doctrines barred a plaintiff from any recovery. However, contributory negligence barred recovery under the causation theory that the plaintiff’s negligence intervened to extinguish defendant’s liability. Assumption of the risk barred recovery under a consent or “no duty” theory. Both doctrines have been replaced in most jurisdictions by a comparative negligence scheme under which the apportionment of liability in personal injury, property damage, and wrongful death cases depends on the relative responsibility of the parties.

New York State’s version of comparative negligence, § 1411 of the Civil Practice Law and Rules, likewise abolished contributory negligence and most forms of assumption of the risk as a complete defense to liability.⁵ Some forms of assumption of the risk, however, were deemed to have survived the enactment because § 1411 is silent as to the long-standing common law right of parties to contract to limit liability. The court of appeals had previously declined to read this silence as abrogating freedoms of contract and association, and had construed § 1411 to retain assumption of the risk as a bar to recovery when the plaintiff has actually consented to assume the known or reasonably foreseeable risks of an activity.⁶ Accordingly, unless public policy proscribed an agreement limiting liability, New York law permitted a plaintiff to consent to assume the risk of an activity, thereby relieving the defendant of legal duty and insulating the defendant from charges of negligence.

Over the years, at least one New York State intermediate appellate court has attempted to limit the availability of the assumption of the risk defense to situations where the plaintiff was injured while voluntarily participating in a sporting or entertainment activity.⁷ This limitation garnered no support in the state’s other intermediate appellate courts, which approved application of the doctrine to situations unrelated to recreation.⁸ Although the New York State Court of Appeals had occasion to apply the doctrine in the context of athletic activities, it similarly never explicitly limited the doctrine to such activities until Trupia.⁹

In Trupia, a majority of the court revisited the doctrinal underpinnings of assumption of the risk, characterizing it as a “highly artificial construct” that is essentially “result-oriented.”¹⁰ Distancing itself from its earlier explanation of the doctrine as based on theories of consent and individual freedom, the court justified retention of the doctrine solely for its utility in facilitating participation in athletic activities. Because of the “enormous social value” of “athletic and recreative activities,” the court endorsed “the notion that [the significantly heightened risks involved in these activities] may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.”¹¹

In Trupia’s case, involving “horseplay” apparently not rising to the level of a recreative or otherwise “socially valuable” activity, the court declined to permit the assertion of assumption of the risk as a bar to liability.¹² The court did allow, however, that to the extent Trupia’s injury was attributable to his own misconduct, it should be taken into account within a comparative fault allocation.

In his concurrence, Justice Smith, joined by two other judges, expressed dismay at the majority’s “extended dictum” limiting assumption of the risk to cases involving sports and leisure activities. The concurring judges criticized the majority for saying anything more than that children cannot consent to the risks of their mischief because of their age. “Assumption of the risk cannot possibly be a defense here, because it is absurd to say that a 12-year-old boy ‘assumed the risk’ that his teachers failed to supervise him,” Justice Smith wrote. “That is a risk a great many children would happily assume, but they are not allowed to assume it for the same reason that the duty to supervise exists in the first place: Children are not mature, and it is for adults, not children to decide how much supervision they need.”¹³

The concurring judges observed that the majority opinion raised more questions than it answered, such as: How is a judge to define an “athletic or recreative” activity? What quantum of “social value” justifies application of assumption of the risk? How is social value to be measured and by whom? And why should those who participate in less desirable forms of amusement, for example, banister sliding rather than bobsledding, be in a better position to recover damages? Stating that “there may be perfectly good answers to [these] questions,” the concurrence concluded that “it is a mistake to make sweeping pronouncements in a case that does not require it, while ignoring the questions those sweeping pronouncements raise.”¹⁴

Endnotes

1 Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392 (2010).

2 Id. at 397 (Smith, J., concurring).

3 Id. at 394. The court further explained: “Children often act impulsively or without good judgment—that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so.” Id. at 396.

4 Id. at 395.

5 N.Y. C.P.L.R. 1411 (McKinney 2010) (effective 1975) (“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”).

6 See Turcotte v. Fell, 68 N.Y.2d 432, 438-39 (1986); Arbegast v. Bd. of Educ., 65 N.Y.2d 161, 168 (1985).

7 Roe v. Keane Stud Farm, 261 A.D.2d 800 (N.Y. App. Div. 3d Dep’t 1999).

8 Sy v. Kopet, 18 A.D.3d 463 (N.Y. App. Div. 1st Dep’t 2005) (tenant locked out for non-payment of rent assumed risk of injuries from fall while attempting to enter his room from second floor window; doctrine not limited to leisure or sporting activities); Lamandia-Cochi v. Tulloch, 305 A.D.2d 1062 (N.Y. App. Div. 4th Dep’t 2003) (Mem. Op.) (minor child assumed risk when he fell from porch railing of defendant’s residence); Westerville v. Cornell Univ., 291 A.D.2d 447 (N.Y. App. Div. 2d Dep’t 2002) (mental health professional assumed risk of injury in training session on patient physical restraint techniques). But see Pelzer v Transel El. & Elec. Inc., 41 A.D.3d 379, (N.Y. App. Div. 1st Dep’t 2007) (declining to extend assumption of the risk to an elevator accident causing injury to a building employee).

9 See Morgan v. State, 90 N.Y.2d 471 (1997) (participant in sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”); Benitez v. N.Y. City Bd. of Educ., 73 N.Y.2d 650 (1989) (high school football player assumed the risk of injury in voluntary competitive athletics); Watson v. State, 52 N.Y.2d 1022 (1981), aff’d for the reasons stated in 77 A.D.2d 871 (1981) (juvenile assumed risk of injury when swung arm at teacher causing clipboard to fly loose).

10 Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395 (2010).

11 Id.

12 Id. at 396.

13 Id. at 397 (Smith, J., concurring).

14 Id. at 397-98 (Smith, J., concurring).