Peter N. Freiberg ()
A recent decision by the Appellate Division, Second Department, has applied the primary assumption of risk doctrine to an interscholastic, high school wrestling referee. Most cases involving high school athletes who are injured playing school sports are filed against school districts accused of lack of supervision. This decision, however, makes it clear that officials charged with refereeing school sports can also be shielded by the assumption of risk doctrine. Steven Rispoli v. Long Beach Union Free School District, Long Island Wrestling Officials Association, Inc. and Richard Petracca1 is a meaningful decision because the court declined the student-plaintiff’s invitation to impose a higher level of responsibility upon referees, than the athletes themselves, to insure that school sporting participants are not injured. (The author was counsel for the referee and the referees’ association.)
Primary Assumption of RIsk
According to the well-established and time-honored doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity. Morgan v. State, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). Risks inherent in the sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation. Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).
Because determining the existence and scope of a duty of care requires an examination of the plaintiff’s reasonable expectations of the care owed him by others, the plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist. Accordingly, where a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, the defendant cannot be charged with negligence. Turcotte, 68 N.Y.2d at 437-438; Cotty v. Town of Southampton, 64 A.D.3d 251, 880 N.Y.S.2d 656 (2d Dept. 2009). “If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.” Turcotte, 68 N.Y.2d at 437.
Under the primary assumption of risk doctrine, risks are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. The primary assumption of risk doctrine is a complete bar to recovery. Weller v. College of the Senecas, 271 A.D.2d 280, 283, 635 N.Y.S.2d 990 (4th Dept. 1995).
The Court of Appeals recently affirmed the strong viability of the assumption of risk defense. In Bukowski v. Clarkson University, 19 N.Y.3d 353, 971 N.E.2d 568, 948 N.Y.S.2d 568 (2012), a college baseball pitcher sued his university for injuries he sustained when he was hit with a baseball. The court concluded that he assumed the risk of being hit by a line drive, noting that risks which are commonly encountered or inherent in a sport are risks for which participants “are legally deemed to have accepted personal responsibility,” and that the primary assumption of risk doctrine “also encompasses risks involving less than optimal conditions.” Bukowski, 19 N.Y.3d at 356. The court also noted that the doctrine is designed to facilitate free and vigorous participation in athletic activities and to shield college athletics from “potentially crushing liability.” Id., at 356.
There are limited exceptions to the primary assumption of risk doctrine. As stated in Morgan, participants will not be deemed to have assumed the risks of: (a) reckless or intentional conduct; or (b) concealed or unreasonably increased risks. Morgan, 90 N.Y.2d at 485. A participant will not be deemed to have assumed the risk where the action is based on negligence which created additional risks not inherent in the sport. Reid v. Druckman, 309 A.D.2d 669, 765 N.Y.S.2d 878 (1st Dept. 2003). For purposes of determining the extent of the threshold duty of care, inherency is the sine qua non. Morgan, supra at 484.
In assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendant’s negligence are “unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” Id., at 485.
New York courts have decided a number of assumption of risk cases involving wrestlers, and routinely grant summary judgment and dismiss cases involving plaintiffs (even minors) who are injured while wrestling. In Farrell v. Hochhauser, 65 A.D.3d 663, 884 N.Y.S.2d 261 (2d Dept. 2009), the Second Department granted summary judgment to a school and a school district where a high school wrestler contracted herpes; the court found that wrestling by its nature involves close contact between participants and the risk of contracting a skin disease is “an inherent danger of the sport.”
In Musante v. Oceanside Union Free School District, 63 A.D.3d 806, 881 N.Y.S.2d 446 (2d Dept. 2009), the Second Department granted summary judgment to a school district where the injured wrestler tripped on the edge of a wrestling mat while performing sprints and collided with a wall; the court found that the risk of colliding with the wall was inherent in the activity and was open and obvious. The court in Egger v. St. Dominic High School, 238 A.D.2d 542, 657 N.Y.S.2d 85 (2d Dept. 1998) granted summary judgment to a school where the student was injured during wrestling practice when he was thrown to the floor by a teammate with whom he was paired, stating: “In the instant case, the event leading to infant plaintiff’s alleged injuries, being thrown to the floor, was reasonably foreseeable, and the risk of injury therefrom is inherent in the sport of wrestling. Thus, the plaintiff assumed the risk of being thrown to the floor.”
In Walcott v. Lindenhurst Union Free School District, 243 A.D.2d 558, 662 N.Y.S.2d 931 (2d Dept. 1997), the court granted summary judgment dismissing the complaint of a wrestler who was injured when his opponent executed a “take-down” move. Similarly, in Edelson v. Uniondale Union Free School District, 219 A.D.2d 614, 631 N.Y.S.2d 391 (2d Dept. 1995), the student was injured in a high school wrestling match against an opponent who was in a higher weight classification; the court dismissed the complaint because the event leading up to the alleged injury suffered by the plaintiff, a blow to the jaw during a takedown move, was reasonably foreseeable in a wrestling match and was not caused by the size of his opponent. And, although not in a school context, the court in Palozzi v. Priest, 280 A.D.2d 986, 720 N.Y.S.2d 676 (4th Dept. 2001) dismissed the complaint of a 13-year-old boy who was injured fake wrestling on a trampoline at the defendant’s residence, the court finding that the risks of the activity were fully comprehended or perfectly obvious and the infant plaintiff consented to them.
The recent decision of the Second Department in Rispoli is significant not because of the result, but rather because the court held that the scope of the assumption of the risk doctrine includes referees. The then-15 year old plaintiff was injured while wrestling, and claimed that the defendants (the referee officiating the wrestling match and the referees’ association of which he was a member) were negligent. The injured wrestler specifically alleged that the referee failed to stop the match when the wrestlers entered into a potentially dangerous position, even though the referee had stopped the match several times before the wrestler was injured. The plaintiff in Rispoli argued that applying the assumption of risk defense to the referee would relieve the referee of any duty of care to the wrestlers.
The trial court denied the defendants’ motion for summary judgment, and on appeal the Second Department dismissed the case, finding that the plaintiff had assumed the risk of injury. The primary assumption of risk defense was found to cover a referee, who although not a guarantor of participants’ safety, is generally charged with a duty to reasonably supervise the participants.
The concept of inherency is critical to the assumption of risk defense. A defendant, such as a coach or referee, has no duty to protect a participant against risks that are inherent in the sport, but does have a duty not to unreasonably increase the risk of injury or expose the participant to a risk of injury that is not already present in the sport. Stated otherwise, the defendant does not have the duty to eliminate all risk of injury or protect the athletes against risks of injury inherent in the sport, but cannot increase that risk of injury or expose the athletes to injury that is not a natural consequence of the sport. It can be stated as a duty of “non-negligent supervision.” In Rispoli, the plaintiff also argued that there was a question of fact as to whether the referee unreasonably increased the risk of injury to the wrestler which would preclude summary judgment, an argument that the court rejected.
As with many assumption of risk cases, Rispoli was decided without the need of a trial, because the courts are able to determine whether the plaintiff voluntarily assumed the risk, and whether the injury-causing event was inherent in the sport or activity.
In Rispoli, although the wrestling maneuver was considered to be a “potentially dangerous hold,” the defendants offered evidence that the maneuver was potentially dangerous not to the injured wrestler, but rather to his opponent. Although the plaintiff argued that summary judgment could not be granted because the wrestling hold was potentially dangerous, the court found there was no evidence that the wrestling rule was designed to protect him, as the injured wrestler. In this type of case, where the plaintiff’s voluntary participation in sporting activities is very clear, summary judgment is a valuable and practical tool for resolving cases without the need of a trial.
The plaintiff in Rispoli also suggested that CPLR 1411 precluded summary judgment. That section of the CPLR states that the culpable conduct attributable to a claimant, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion of the culpable conduct attributed to the claimant.
Although the Second Department did not comment on the application of CPLR 1411 in its decision in Rispoli, the courts have held that the section does not require a trial to determine comparative negligence or comparative causation. Because the primary assumption of risk defense can serve as a complete bar to recovery, a plaintiff is not entitled to a trial to determine comparative negligence. As stated by Chief Judge Jonathan Lippman: “[t]he doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation.” Trupia v. Lake George Central School District, 14 N.Y.3d 392, 395, 927 N.E.2d 546, 901 N.Y.S.2d 127 (2010). If the primary assumption of risk doctrine applies, the defendant is shielded from liability, and factual issues of comparative negligence are irrelevant.
The court recognized the unreasonable burden that would be imposed upon referees, who are not guarantors or insurers against injury, if they could be found negligent for failing to prevent injuries that are inherent in the risk of participating in sports. Referees should not be required to stop competition for fear of being sued for every call they make, because that would interrupt the competitive flow of the game or match. Athletes should know that referees are not there to prevent all injury, since that would encourage athletes to rely upon the referee to stop the play before injury, imposing a duty that does not exist. In sum, the court struck the appropriate balance between a participant’s reasonable expectations of injury and a referee’s duty not to unreasonably increase that risk.
Peter N. Freiberg is an attorney with Denlea & Carton, in White Plains. He served as counsel for the referee and the referees’ association in ‘Rispoli v. Long Beach Union Free School District,’ discussed in this article.
1. 2013 NY Slip Op 07464 (2d Dept. Nov. 13, 2013) (available at http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2013/D39736.pdf)