The Second Department determined the doctrine of primary assumption of risk was not available where the plaintiff, the music director of a marching band, was injured by a defect in the roadway where the band was marching. The court noted that extending the assumption of risk doctrine to persons using streets or sidewalks would constitute an unwarranted diminution of the duty to keep sidewalks and streets reasonably safe:
The doctrine of primary assumption of the risk is inapplicable in this case. It cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County … . “[E]xtension of the doctrine [of primary assumption of the risk] to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of landowners–both public and private–to maintain their premises in a reasonably safe condition” … . Behr v County of Nassau, 2015 NY Slip Op 00485, 2nd Dept 1-21-15