IN THIS ALL-TERRAIN-VEHICLE (ATV) ACCIDENT CASE, THERE IS A QUESTION OF FACT WHETHER THE DRIVER UNREASONABLY INCREASED THE RISK TO PLAINTIFF-PASSENGER THEREBY PRECLUDING THE APPLICATION OF THE ASSUMPTION-OF-THE-RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether assumption of the risk doctrine precluded plaintiff from recovery in this all-terrain vehicle (ATV) accident case. There was a question whether the driver unreasonably increased the risk to plaintiff-passenger:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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'” … . Participants, however, are not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks … . Here, the evidence submitted by the defendant in support of the motion raised triable issues of fact as to whether the manner in which the decedent was operating the ATV unreasonably enhanced the risk of injury and whether the doctrine of primary assumption of risk applies to this case … . Bulfamante v Bulfamante, 2025 NY Slip Op 02310, Second Dept 4-23-25

Practice Point: Here there was no question that the assumption-of-the-risk doctrine could apply to plaintiff-passenger injured in an all-terrain-vehicle (ATV) accident.

Practice Point: Although the assumption-of-the-risk doctrine could apply to the plaintiff-passenger in this ATV accident case, there was a question of fact whether the doctrine was precluded because the driver unreasonably increased the risk.