Diving Board Liability and the Assumption of Risk

This post discusses a personal injury concept that, while at times confusing, often plays an integral role in determining liability: assumption of risk. Assumption of risk is a defense in a personal injury action in which a defendant claims that the plaintiff voluntarily undertook an activity with the knowledge that there is an inherent danger of suffering an injury while partaking in such an activity. As such, the defendant should not be held responsible if that injury does in fact occur.

To many, the concept of assumption of risk gained notoriety due in part to a famous decision written by Judge Benjamin Cardozo, at the time chief justice of the New York State Court of Appeals. The case was Murphy v. Steeplechase, 250 NY 479, but is often colloquially referred to as “the Flopper case.” In 1929, Coney Island featured a ride known as the Flopper. We can only go by Judge Cardozo’s descriptions in the decision, but the Flopper appears to have been a kind of long walkway/maze wherein the floor and walls and “flopped” about, causing riders to lose their balance in what presumably was a humorous and thrilling manner. Plaintiff, a “vigorous young man,” fractured his knee cap on the ride, presumably from flopping about and eventually falling to the ground. He lost his lawsuit against the ride owners, with Judge Cardozo noting that, “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.”
baseball crowdThe reference to sports is an appropriate one – the doctrine of assumption of risk has evolved greatly since this decision, particularly in the area of amusement park liability. Where the doctrine still has its greatest bite is in the area of sports liability. It is this very doctrine that has stifled the efforts of those who have been hit and injured by wayward balls at baseball games to be compensated for their injuries. Amusement parks are now far less likely to be protected by the doctrine of assumption of risk, the modern thinking being that people enjoy rides specifically because they do not believe there is any chance of being injured.

That said, assumption of risk doesn’t only exist in the context of sporting events. In the recent Suffolk County personal injury case Freeman v. Village of Hempstead, 2014 NY Slip Op 06298, the plaintiff was injured when he fell off a diving board at a public pool. The defendant argued that the plaintiff assumed the risk of falling off when he got on the diving board. On its face, this argument seems reasonable. It did not win the day, however, and here we see a slight twist on the assumption of risk doctrine. The plaintiff alleged that the treads on the diving board, which are standard and meant to create some traction to reduce the risk of slipping and falling, were worn away and thus defective, and that the plaintiff did not assume this risk – only the risk of slipping and falling from a properly maintained diving board. This argument was successful, with the court finding that the defendant did not overcome its burden of showing that the lack of properly maintained treads on the board did not increase the risk of falling beyond what was assumed by the plaintiff.

The takeaway here is that a potential plaintiff should not assume that they assumed a risk by virtue of the activity they were partaking in when that injury occurred. Speak with a personal injury lawyer – they should be able to help inform you as to whether such an injury deserves compensation.

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