Wednesday, March 9, 2011

Court Declines to Apply Assumption of Risk to Rollerblading on A Sidewalk

In Ashbourne v. City of New York, the plaintiff was injured while rollerblading on a public sidewalk. She commenced an action against the City and NYCHA. The trial court dismissed the plaintiff's complaint on the basis of the assumption of risk doctrine. On appeal, the First Department reversed and reinstated the complaint.

The First Deparment initially observed that, in Trupia v. Lake George CSD (14 NY3d 392 [2010]), the Court of Appeals declined to apply the assumption of risk doctrine by limiting the doctrine to protect only organizers and sponsors of athletic and recreational activities because of their "enormous social value". The First Department then observed that assumption of the risk doctrine was applied by the Court of Appeals to a golfing game in Anand v. Kapoor (2010 NY Slip Op 09380 [2010]) because "[a] person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation."

Applying the foregoing analsyis, the First Department held that the rollerblading engaged in by plaintiff on a public sidewalk was not part of an organized sporting event, but was merely a form of exercise no different than jogging. As such, plaintiff did not consent to the negligent maintenance of the sidewalk by the City.

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