By LAURIE A. GIORDANO AND ALISSA M. VALENTINE
Daily Record Columnists
The Fourth Department’s recent decision in Litz v. Clinton Cent. Sch. Dist., 2015 N.Y. App. Div. LEXIS 2245 (4th Dept. Mar. 20, 2015) potentially expands the scope of the assumption of the risk doctrine to the benefit of defendants, contrary to recent Court of Appeals cases addressing the limits of the doctrine, see Custodi v. Town of Amherst, 20 N.Y.3d 83, 89 (2012) (“[T]he doctrine ‘must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation.’” [quoting Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395 (2010)]).
In Litz, the Fourth Department dismissed the plaintiff hockey player’s claims for injuries sustained in a locker room when a teammate’s ice skate descended on his foot, holding defendants owed no duty to the plaintiff because the plaintiff was still “participating” in hockey at the time of the injury, Litz, 2015 N.Y. App. Div. LEXIS 2245, at *2-3.
The long-established doctrine of assumption of the risk, frequently asserted as a defense to personal injury liability, is based upon the presumption that under certain circumstances, a plaintiff can waive a defendant’s duty of care to the plaintiff. Under the doctrine, a plaintiff may expressly or impliedly waive a defendant’s duty of care, or may waive it simply by voluntarily participating in an inherently dangerous activity.
To assert express assumption of the risk, a defendant must show that the plaintiff expressly waived defendant’s duty of care by, for example, written contract or liability release or waiver. Vendors often print express waivers on the tickets they sell. However, under New York General Obligations Law §5-326, a plaintiff cannot expressly waive the duty of care owed to the plaintiff where the owner or operator of a facility receives a fee for recreational use of the facility.
The second type of assumption of the risk, implied, occurs when a plaintiff consents to waive a duty of care by plaintiff’s conduct under the circumstances. Are you planning to catch a baseball game this summer? Go to the game and you will have assumed the risk of getting injured by fly balls.
Primary assumption of the risk, the defense asserted by defendants in Litz, presumes a plaintiff’s consent to waive the duty of care owed to him by voluntarily participating in an inherently dangerous activity. This is because “particular athletic and recreative activities … have ‘enormous social value’ even while they may ‘involve significantly heightened risks,’” Custodi, 20 N.Y.3d at 88 (citations omitted).
Primary assumption of the risk, however, must be analyzed by assessing the nature and scope of plaintiff’s consent (i.e. whether participation in the activity was voluntary and whether the injury-producing act was reasonably foreseeable, respectively). In evaluating the scope of the plaintiff’s consent, the risks the plaintiff assumed when he elected to participate in the activity must be considered. The risks must be known, apparent or reasonably foreseeable consequences of participating in the activity, see id.
The New York Court of Appeals has applied the doctrine to cases involving “a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue,” id. at 88-89 (listing a litany of cases involving athletes participating in a sport or activity).
In Litz, the threshold issue to be addressed then was whether the plaintiff was participating in a sporting event or recreative activity at the time of injury. Notably, the plaintiff was not playing hockey at the time of his injury, and thus, plaintiff’s injury did not occur in the course of the “recreative activity” contemplated by the Court of Appeals. Rather, the plaintiff was heading to the locker room shower when his teammate, who still had on ice skates, stepped on his foot, see Litz, 2015 N.Y. App. Div. LEXIS 2245, at *3-4.
It is reasonable to ask, in the absence of participation in a risky activity, how could the plaintiff have consented to waive defendants’ duty of care? The Fourth Department reasoned that the plaintiff was still “involved” or “participating” in hockey while in the locker room because the act of undressing in the locker room after hockey practice is an inherent “facet” of hockey, explaining that it would be “inconsistent with the purpose of the assumption of the risk doctrine to isolate the moment of injury and ignore the context of the accident,” see id. at 3-5 (encouraging free participation in sports is a “suitably compelling policy justification … to permit an assertion of assumption of the risk in the present circumstances,”[citations omitted]).
At the time of injury, plaintiff’s teammate was undressing and stepped back onto the plaintiff’s foot. The decision notes that the high school team stored its equipment, including skates, in the locker room area where both players were located.
The Fourth Department relied upon three cases for its application of the doctrine: a Third Department case from 2001, which held a golfer had not assumed the risk of getting hit by an errant golf ball in a parking lot prior to commencing his golf game; a 1985 Court of Appeals case, which held the doctrine applicable where a baseball player was injured while playing on a muddy field; and a 2003 Court of Appeals case holding that a construction worker’s activities fell within the protections of New York Labor Law § 240(1), see Hawkes v. Catatonk Golf Club Inc., 288 A.D.2d 528, 529 (3rd Dept. 2001) (golf); Maddox v. City of New York, 66 N.Y.2d 270, 276 (1985) (baseball); Prats v. Port Auth., 100 N.Y.2d 878, 882 (2003) (construction worker).
Having found the plaintiff’s injury occurred while the plaintiff was “participating” in hockey, the Fourth Department then went on to address “whether plaintiff assumed the risk of the injury-causing acts at issue,” see Litz, 2015 N.Y. App. Div. LEXIS 2245, at *5. In reaching its ultimate holding, the court focused on the fact the plaintiff had three years of hockey experience and that the plaintiff was aware that “the risk of being injured by a skate blade is ‘inherent in the sport’ of hockey,” see id. (citations omitted) (“[A]wareness of risk … is … to be assessed against the background of the skill and experience of the particular plaintiff.”).
Arguably, in focusing its analysis primarily on the plaintiff’s knowledge and experience in Litz, the Fourth Department failed to take into account that in assessing assumption of risk, “knowledge plays a role, but inherency is the sine qua non,” Morgan v. State, 90 N.Y.2d 471, 484 (1997).
As a result of the decision in Litz, defendants may contend that the doctrine of primary assumption of the risk has been expanded and that defendants are not liable for post-athletic activity conduct causing injury. In rebuttal, plaintiffs may argue that the Fourth Department failed to heed the Court of Appeals’ warning set forth in the two most recent Court of Appeals cases addressing the assumption of risk doctrine.
In both Custodi and Trupia, the Court of Appeals warned of “the tension that exists between the assumption of the risk and the dictates of CPLR 1411 [comparative negligence],” and “clarified that the doctrine ‘must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation,’” Custodi, 20 N.Y.3d at 89 (quoting Trupia, 14 N.Y.3d at 396).
It is easily accepted that the risk of getting hit with a hockey stick, puck or ice skate while on the ice are risks readily assumed by hockey players, but now, the risks assumed extend to at least the locker room.
The Litz decision was a unanimous affirmation of the lower court, and it is uncertain if leave to the Court of Appeals will be sought or granted. If leave is granted, questions to be answered by New York’s highest court include: Is getting injured in the locker room while changing after practice “participation” in the sport of hockey, and is this mechanism for injury a risk inherent in the sport of playing hockey?
Perhaps the Court of Appeals would hold that post-activity conduct, like defective safety features, is not automatically an “inherent risk?” see Morgan, 90 N.Y.2d at 488 (torn tennis net that injured plaintiff not by its nature automatically an inherent risk of tennis as a matter of law for summary judgment purposes); see also Rosati v. Hunt Racing, Inc., 13 A.D.3d 1129, 1130 (4th Dept. 2004) (whether an improperly trained or negligent flagman is a risk inherent in the sport of motocross racing is an issue of fact preventing summary judgment).
What is likely is that defendants in personal injury actions involving sporting activities will be relying upon Litz to seek summary judgment to dismiss the complaint based upon the doctrine of assumption of the risk.
Laurie A. Giordano is a founding partner of the Rochester litigation law firm of Leclair Korona Giordano Cole LLP. She concentrates her practice in the areas of insurance law, commercial and personal injury litigation. She can be reached at email@example.com or through the firm’s website at www.leclairkorona.com. Alissa M. Valentine is an associate at Leclair Korona Giordano Cole LLP and she can be reached at firstname.lastname@example.org or through the firm’s website.