“Horseplay” Injury Claim Not Foreclosed by Assumption of Risk Doctrine

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court’s order denying the defendants’ motion for summary judgment in a personal injury case involving horseplay in a pool at a party.

The defendants hosted a party at their house. Around 1:00 a.m., the plaintiff joined some others in the pool. The pool was above-ground and equipped with a long slide. The plaintiff dove head-first down the slide. When she slid into the pool head-first, she hit her head on the bottom of the pool and sustained injuries. The plaintiff filed a personal injury lawsuit, alleging the defendants were responsible for her injuries.

The defendants moved for summary judgment, arguing that the plaintiff’s claims were prevented by the doctrine of assumption of risk. The defendants argued that the plaintiff participated in a risky activity (sliding into a pool head-first) and that the plaintiff was therefore the proximate cause of her accident. As such, the defendants argued that the complaint be dismissed. The plaintiff filed opposition papers, and the trial court judge denied the defendant’s motion for summary judgment. The defendants appealed.

The doctrine of assumption of risk is reserved for inherently risky activities. The potential danger associated with these activities is obvious to all participants. Examples include sky diving, bungee jumping, parasailing, and boxing. A boxer walks into the ring before a match knowing that he is going to sustain injuries, and he accepts injuries as an inevitable part of boxing. With many of these activities, operators will require participants to sign waivers. If the participant refuses to sign the waiver, he or she will not be permitted to do the activity. The waiver usually states that the operator is not responsible for any accidents that occur, the participant is aware of the inherent dangers, and the participant agrees to proceed anyway. If a plaintiff signs a waiver and then sustains an injury during the activity, the plaintiff will generally be barred from suing the operator in a personal injury lawsuit.

The Court of Appeals in New York has further clarified the doctrine of assumption of risk. In New York, personal injury claims are barred when the plaintiff participates in certain athletic and recreational activities. New York recognizes that some recreational activities have social value despite their high risk of injury. These recreational activities are protected under the doctrine of assumption of risk. In New York, the doctrine of assumption of risk only covers activities that occur during a sports game or match, are sponsored or supported by the defendant or are athletic or recreational activities that occur at an assigned venue.

For instance, boxing injuries are barred under the doctrine of assumption of risk in New York because they are part of a sporting event that occurs at a designated venue. Sky diving injuries are also barred because the sky diving activity is sponsored and run by the defendant.

Assumption of risk only bars injuries that are a direct result of the inherent riskiness of the activity. If the defendant acts negligently or intentionally, the defendant can still be liable for injuries suffered by the plaintiff. For example, if a sky diving operator fails to properly affix the harness and the harness containing the parachute falls off mid-flight, the operator can be liable for negligence.

Here, the Fourth Department held that the defendants failed to prove that the swimming activity was part of the doctrine of assumption of risk because it did not fall into one of the three categories outlined by the Court of Appeals. The Fourth Department held that the plaintiff was not injured as part of an organized recreational or athletic activity but rather horseplay in the middle of the night at a party. The Fourth Department therefore upheld the trial court’s denial of the motion for summary judgment, stating that horseplay is not covered by the doctrine of assumption of risk.

This decision, however, does not bar the defendants from arguing comparative negligence. Under comparative negligence, the plaintiff may be wholly or partially responsible for her injuries.

If you or a loved one has been injured in an accident, you may have a right to compensation. The experienced personal injury lawyers at the Law Offices of Thomas L. Gallivan, PLLC will review your case, explain your legal options, and aggressively fight for your right to damages. Contact the Law Offices of Thomas L. Gallivan, PLLC today to schedule a consultation.

Holly M. Redmond v. Denis M. Redmond & Candace G. Redmond, 263 CA 14-01423 (4th Dept. 2015).

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