THE PLAINTIFF-STUDENT FOOTBALL PLAYER DID NOT ASSUME THE RISK OF INJURY IN A FOOTBALL-RELATED WEIGHT-LIFTING SESSION; THE RISK OF A WEIGHT-LIFTING INJURY IS NOT INHERENT IN THE GAME OF FOOTBALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student, a high school sophomore varsity football player, did not assume the risk of injury during a weight-lifting training-session when he voluntarily agreed to play football. The decision includes a good explanation of the assumption-of-the-risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sport or recreational activity is deemed to consent to the risks inherent in that sport, thereby negating any duty on a defendant’s part to safeguard the plaintiff from those risks … . While the absolute defense of implied assumption of risk, which was abolished by the enactment of CPLR 1411 in 1975, barred recovery by a plaintiff who was aware of the risks of engaging in a specific act and engaged in that specific act nonetheless …, the separate and distinct doctrine of primary assumption of risk posits that the risk is assumed by virtue of the plaintiff’s voluntary participation in a sporting event, which indicates the plaintiff’s consent to the risks that are inherent in that sport. Although a plaintiff’s knowledge of the risk involved in the particular act that results in injury remains relevant, under CPLR 1411, in assessing his or her comparative fault, in the context of primary assumption of risk, “knowledge plays a role but inherency is the sine qua non” … . * * *

Unlike a plaintiff subject to the pre-1975 defense of implied assumption of risk, the infant plaintiff in this case did not assume a risk at the moment he attempted to lift the 295-pound bar. Rather, his assumption of risk occurred when he joined the football team …, and the risks he assumed were limited to those that are inherent in the sport of football. The risk of losing control of a 295-pound bar is not a risk inherent in the sport of football … . Annitto v Smithtown Cent. Sch. Dist., 2022 NY Slip Op 06098, Second Dept 11-2-22

Practice Point: This decision clarifies the boundaries of the assumption-of-the-risk as it applies to school sports. When the plaintiff-student joined the football team, he assumed the risks inherent in the game of football. Here, those risks were not deemed to extend to weight-training, even though the weight-training was football-related. The student’s negligent supervision action stemming from his weight-training injury was not precluded by the assumption-of-risk doctrine.