In Trupia ex rel. Trupia v. Lake George Central School, (14 NY3d 392, 927 N.E.2d 547, 901 NYS2d 127 [2010]), the Court of Appeals recognized that the blanket application of assumption of risk in every sporting activity was not correct and limited application of the doctrine primarily to protect sponsors of athletic and recreational activities from liability that arose from these activities (id., at 396, 901 N.Y.S.2d 127]).
After observing that" the effect of the doctrine's application is often not different from that which would have obtained by resort to the complete defenses purportedly abandoned with the advent of comparative causation" the court noted that culpable conduct on the part of a defendant causally related to a plaintiff's harm is rendered nonactionable by reason of culpable conduct on the plaintiff's part that does not entirely account for the complained-of harm.
Continuing, the Court stated "while it may be theoretically satisfying to view such conduct by a plaintiff as signifying consent, in most contexts this is a highly artificial construct and all that is actually involved is a result-oriented application of a complete bar to recovery".
The Court declared that a "renaissance of contributory negligence replete with all its common-law potency is precisely what the comparative negligence statute was enacted to avoid" (id. at 395, 901 NYS2d 127).
The Court went on to state that the protection afforded under the doctrine "was a policy matter because of the enormous social value" that athletic and recreational activities impart, "even while they involve significantly heightened risks" and it noted that it had "employed the notion that these risks maybe voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise" (id.).
The Court thus declined to apply the assumption of risk doctrine to bar the claims of the 12 year old infant plaintiff who was injured sliding down a bannister while at summer school because the case was not one where defendant "solely by reason of having sponsored or otherwise supported some risk-laden, but socially valuable voluntary activity has been called to account in damage" (id, at 396, 901 NYS2d 127).
In closing, the majority noted as follows:
"We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out or school-only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable way enabled" (id.).
