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PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT).

The Second Department determined plaintiff’s negligence cause of action against the school district and another student were properly dismissed under the doctrine of primary assumption of risk. Plaintiff, a student, was injured in a basketball game during gym class when he was allegedly kicked by the student defendant. Plaintiff chose to play basketball among other possible activities. Therefore he could not take advantage of the “inherent compulsion” doctrine. Plaintiff’s assertion at the 50-h hearing that he was intentionally kicked did not raise a question of fact because the pleadings did not include an intentional tort or any mention of intentional conduct:

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Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty… . However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … .

Here, the defendants established, prima facie, that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants… …

Also contrary to the plaintiff’s contention, he did not raise a triable issue of fact as to the application of the inherent compulsion doctrine, which “provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior” … . The plaintiff testified at his deposition that he chose to play basketball from a number of options. Consequently, the inherent compulsion doctrine is inapplicable … . Hanson v Sewanhaka Cent. High Sch. Dist., 2017 NY Slip Op 07711, Second Dept 11-8-17

 

NEGLIGENCE (PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/EDUCATION-SCHOOL LAW (PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/ASSUMPTION OF RISK (EDUCATION-SCHOOL LAW, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/INHERENT COMPULSION DOCTRINE (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/GYM CLASS EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))

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