You are here: / / Collision With Another Swimmer Not Actionable/Primary Assumption of Ri...

Collision With Another Swimmer Not Actionable/Primary Assumption of Risk

The Second Department determined unintentional, incidental contact between swimmers in the same swim lane during “free swim” was not actionable:

The doctrine of primary assumption of risk is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks … . Thus, ” [a] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law'” … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . However, by voluntarily engaging in a sport or recreational activity, a participant assumes, or consents to, the commonly appreciated risks that are inherent in and arise out of the activity generally, and which flow from the participation … . An incidental collision or contact between persons confined to a pool lane during a free swim is an inherent risk of the activity … .  Rueckert v Cohen, 2014 NY Slip Op 02918, 2nd Dept 4-30-14

 

You might also like
NEGLIGENCE CAUSE OF ACTION AGAINST LANDLORD BASED UPON AN ASSAULT AGAINST PLAINTIFF IN THE HALLWAY OF PLAINTIFF’S APARTMENT BUILDING PROPERLY DISMISSED (SECOND DEPT).
Complaint Can Not Be Deemed a Late Notice of Claim/Application to File a Late Notice of Claim Can Not Be Granted After the Statute of Limitations Has Run/City Is Not Required to Plead the Failure to File a Notice of Claim as a Defense/Participation in Discovery Did Not Preclude the City from Moving to Dismiss Based Upon Plaintiff’s Failure to File a Notice of Claim (After the Statute of Limitations Had Run)
DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE DEFENSE EXPERT’S AFFIRMATION IN THIS MED MAL CASE DID NOT ADDRESS ALL THE MALPRACTICE ALLEGATIONS IN THE PLEADINGS; DEFENDANTS’ SUMMARY JUDGMENT MOTON SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ARTICLE 78 PETITION WAS NOT SERVED UPON A PERSON AUTHORIZED TO RECEIVE SERVICE ON BEHALF OF THE NYC DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP); ALTHOUGH THE PROCESS SERVER ALLEGED THE PETITION WAS DELIVERED TO AN ATTORNEY AT THE DEP WHO SAID SHE WAS AUTHORIZED TO RECEIVE SERVICE, THE DOCTRINE OF EQUITABLE ESTOPPEL DID NOT APPLY (SECOND DEPT).
DISCOVERY OF PRIOR ASSAULTS IN THIS STUDENT ON STUDENT THIRD-PARTY ASSAULT CASE SHOULD NOT HAVE BEEN LIMITED TO PRIOR SEXUAL ASSAULTS AND PRIOR ASSAULTS BETWEEN THE TWO STUDENTS, ASSAULTS OF ANY KIND MAY HAVE PUT THE SCHOOL ON NOTICE (SECOND DEPT).
PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).
Anticipatory Repudiation Cause of Action Stated;Four-Year UCC Statute of Limitations Applied

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Failure to Appear at Deposition Was a Material Breach of a Condition Precedent... Failure to Take Evasive Action Did Not Constitute Contributory Negligence