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Pilot Assumed the Risk of a Take-Off from a Wet, Grass Field

The Fourth Department determined plaintiff-pilot’s complaint should have been dismissed because the pilot, injured attempting to take off from a grass field, assumed the risk associated with a take-off from a wet field.  The airport is a designated venue for the recreational activity of private aviation.  Therefore the recreational use of the airport was a qualifying activity under the doctrine of primary assumption of the risk. The pilot was aware of the wet conditions prior to his attempt to take off:

We agree with defendant that its airport is a designated venue for the recreational activity of private aviation and that plaintiff’s use thereof was in furtherance of his pursuit of that activity … . We thus conclude, as defendant contends, that plaintiff’s recreational use of defendant’s airport was a qualifying activity under the doctrine of primary assumption of the risk … . Primary assumption of the risk applies when a consenting participant in a qualified activity “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” …  . “[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . The primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions… . “It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … .

Here, the undisputed facts establish that plaintiff, an experienced pilot, was well aware of the risk inherent in taking off from a soft, wet grass runway with the type of landing gear with which his aircraft was equipped. Plaintiff’s awareness of the risk was amply established by his admitted preflight concern about the condition of the grass runway, and by his personal inspection thereof generated in part by his encounter with wet and muddy conditions while towing his aircraft to the runway by motor vehicle. Bouck v Skaneateles Aerodrome, LLC, 2015 NY Slip Op 05300, 4th Dept 6-19-15

 

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