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Collision With Another Swimmer Not Actionable/Primary Assumption of Risk

The Second Department determined unintentional, incidental contact between swimmers in the same swim lane during “free swim” was not actionable:

The doctrine of primary assumption of risk is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks … . Thus, ” [a] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law'” … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . However, by voluntarily engaging in a sport or recreational activity, a participant assumes, or consents to, the commonly appreciated risks that are inherent in and arise out of the activity generally, and which flow from the participation … . An incidental collision or contact between persons confined to a pool lane during a free swim is an inherent risk of the activity … .  Rueckert v Cohen, 2014 NY Slip Op 02918, 2nd Dept 4-30-14

 

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Failure to Appear at Deposition Was a Material Breach of a Condition Precedent... Failure to Take Evasive Action Did Not Constitute Contributory Negligence