In the fall, people’s thoughts turn to—sports. Whether as a spectator or a participant, safety is important. It is essential to know if the playing field has more holes than the Mets’ starting line up and whether an injury arising out of contact with such a defect is actionable.

Liability in personal injury actions in New York is generally measured by assessing the comparative culpability of plaintiffs and defendants pursuant to CPLR §1411. This provision eliminated contributory negligence and assumption of the risk as absolute bars to recovery in most negligence cases, but not necessarily those arising out of sporting events. Although liability in personal injury actions is generally governed by principles of comparative negligence, the doctrine of primary assumption of the risk has remained in determining liability for many injuries sustained during sporting activities. The Court of Appeals has held that primary assumption of the risk is a measure of a duty of care and not an absolute defense. However, it may sometimes completely bar recovery by relieving the defendant of any duty of care to a voluntary participant or spectator in a sporting or recreational activity. The stated purpose is ostensibly to promote a policy of facilitating free and vigorous participation in athletic activities based upon a presumption that certain sporting and recreational activities have been found to be so dangerous that there may be no duty of care.

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