Two New York Decisions Reflect Confusion Over Assumption of Risk

(Editor’s note: the following was written recently by Gary Chester, our long-time senior writer and a sports law professor, for Sports Litigation Alert. The Alert is the most-comprehensive sports law periodical in the nation, publishing 15 to 20 case summaries and articles every two weeks, and featuring a searchable archive of 5,000 summaries and articles.)

By Gary Chester, Senior Writer

An important defense in sports injury cases is assumption of risk, which enables defendants to obtain a dismissal where the plaintiff knew of a risk but voluntarily participated in the activity that caused injury.

This affirmative defense seems simple enough. In New York, however, jurists are divided on whether and when the defense is available because (1) an exception arises when a defendant enhances or conceals the risk and (2) lawmakers seemingly eliminated assumption of risk nearly five decades ago.

Two recent decisions reveal the complexity of the issues. Both are reported in Grady v. Chenango Valley Central School District, 2023 NY Slip Op 02142, N.Y. Ct. of Appeals (April 27, 2023).

When we first reported on Grady two years ago, a divided New York State Appellate Division panel upheld a trial court dismissal based on a high school baseball player’s assumption of risk. We believed the case would land in New York’s highest court, the Court of Appeals, and it did.

The First Baseman was Injured in a Circus-like Drill

Kevin Grady was a high school senior and a member of the defendant’s varsity baseball team. He was participating in an early season practice in which the coaches employed a unique drill that involved players rotating in and out of two first base positions, regular first base and “short” first base. Two balls were hit, and two fielders threw baseballs to both first basemen simultaneously. The plaintiff was struck in the eye by an errant throw while he was lined up behind one of the first basemen, awaiting his turn to take throws.

The complaint alleged that the district was negligent by conducting multiple infield drills with multiple balls in play without using proper safety precautions and equipment. The trial court granted the school district’s motion to dismiss based on assumption of risk, and the Appellate Division affirmed the ruling by a 3-2 vote.

The majority found that using multiple baseballs in a drill is common and that Grady was aware of the risk of being struck by an errant baseball. The court emphasized that the plaintiff saw several errant balls during the drill and even discussed the danger with other players prior to the incident. The court emphasized that “[P]laintiff did not raise his concerns with a coach and continued to participate in the drill.”

A dissenting judge wrote that using an inadequate safety measure in the drill, specifically a seven-foot-by-seven-foot screen, created an issue of fact. A second dissenter wrote that the drill scarcely resembled baseball and was “more reminiscent of Ringling Brothers than Abner Doubleday…”

The Courts Consider a Second Case

Another case presenting similar issues was Secky v. New Paltz Central School District. Jaxson Koebel-Secky was 14-years-old when he was injured during a school basketball drill in which another student bumped him into retracted bleachers beyond the sidelines. The drill did not use boundary lines and the student was injured while out of bounds, prompting the plaintiff to argue that the coach had enhanced the risk of colliding with the bleachers.

The trial court denied the school district’s motion for summary judgment based on assumption of risk, but the Appellate Division reversed. A dissenting judge wrote that assumption of risk is normally a jury issue, and the plaintiff’s recreational safety expert created a jury issue by opining that eliminating the “buffer zone” needed for a player to slow down before running into bleachers or walls increases the risk of injury. Secky appealed the reversal.

Since Grady and Secky presented identical issues, the Court of Appeals consolidated the cases and reported the decisions in one opinion.

Assumption of Risk is Narrowly Applied in New York

Writing for the Court, Justice Michael Garcia recounted that in 1975, New York passed a comparative negligence law, which stated that contributory negligence or assumption of risk “shall not bar recovery” in personal injury and other actions. He noted that the Court subsequently limited “primary” assumption of risk to participants in recreational and professional sports.

This judicial exception in favor of organizers of sports activities is based on the social value of athletics. Subsequent cases imposed a duty on defendants to make the conditions “as safe as they appear to be,” and held that they may be liable for reckless or intentional conduct, or “risks that are concealed or unreasonably enhanced.”

Whether a plaintiff has assumed a risk is normally for a jury to decide, especially where a condition may have enhanced the risk of injury. But the Court of Appeals issued a split decision. In Secky, the Court affirmed the appellate court’s dismissal of Secky’s complaint. The Court reasoned that the risk of colliding with an open and obvious item near a basketball court is inherent with playing on that court and the drill did not unreasonably increase Secky’s risk of injury.

As to Grady, the Court reversed the Appellate Division’s dismissal because the plaintiff raised triable questions of fact as to whether the drill involving multiple baseballs and a screen “was unique and created a dangerous condition over and above the usual dangers that are inherent” in baseball.

So, what was the distinction between Secky and Grady?

It appears that the drill in Secky resembled the game of basketball, while the drill in Grady, with its multiple baseballs and a screen, was too far afield from the game of baseball so a jury could conclude that the coaches increased the risk of injury.

The Court of Appeals essentially adopted the position of one of the dissenters in the Appellate Division that regarded the baseball drill as a circus. Justice Garcia wrote that errant balls may be an inherent risk of playing baseball, but a jury should be allowed to decide if the complexity of the drill “concealed or unreasonably enhanced” the risks.

Abolish Assumption of Risk?

Justice Jenny Rivera filed a provocative separate opinion in which she concurred with Grady and dissented from Secky. She began: “It’s time we correct the errors of the past and abandon the implied assumption of risk doctrine that the Court has retained despite the Legislature’s unequivocal abolition of contributory negligence and assumption of risk as complete defenses.”

Justice Rivera wrote that the Court applied several precedents which misinterpreted New York’s comparative negligence law, CPLR 1411. She cited the legislative history reflecting “a shared intent among all three branches of the government to abolish assumption of risk as an absolute bar to recovery…” Justice Rivera concluded that the Court improperly revived assumption of risk by carving out an exception for sports with inconsistent results.

The Justice further highlighted a decision involving a plaintiff who was injured while rollerblading in her neighborhood when her skate struck the elevated edge between the defendant’s property and the drainage culvert on the street. The Court ruled that assumption of risk did not apply because the doctrine only applies to sports and recreational activities “that take place at designated venues.” Justice Rivera opined that there was no compelling basis to exclude the owners of Madison Square Garden or the Barclays Center from the general rule that property owners are liable for their negligence, as they “can more easily afford insurance than the Town of Amherst residential homeowners…”

Justice Garcia’s majority opinion in Grady rejected Justice Rivera’s call to abolish the assumption of risk exception for lack of a “compelling justification” and out of respect for 50 years of precedent which the legislature did not disturb.

The importance and complexity of the matter is further evidenced by the dissent of Justice Madeline Singas, who dissented in Grady and concurred in Secky. Justice Singas emphasized that the baseball drill “was as safe as it appeared” and concealed no risks to the experienced Grady. She emphasized that while professional sports venues can easily afford insurance, “many youth programs, especially those serving disadvantaged children, may not be so fortunate.”

The Takeaway

Judicial activism is an overused term that critics of a new judicial doctrine sometimes pin on the courts. Jurists often devise legal tests or principles to decide cases where there is little or no guidance from the legislature. But in Grady, the Court of Appeals arguably abused its discretion when it passed on an opportunity to reinterpret the applicable statute and eliminate assumption of risk as a defense in cases involving organized sports.

Despite Justice Rivera’s detailed analysis of what amounts to a checkerboard of decisions, the Court chose to honor precedent rather than to concede overreach.

The decision also ignores the common thread of Grady and Secky: both drills were not conducted under the normal rules of the game. Whether the multiple baseballs in Grady or the lack of boundaries in Secky “unreasonably enhanced” the risk of injury is a query normally assigned to a jury and for good reason.

In addition, the Court of Appeals failed to consider the plaintiffs’ status in either case. Both Grady and Secky were student-athletes participating under the authority of coaches. Had the plaintiffs told their respective coaches that the drills seemed dangerous, and they were going to “sit this one out,” they probably would have been dismissed from their teams. Where the athletes have no players union or other leverage, it is appropriate for jurors to decide if the participants “voluntarily” accepted the risks of injury.