Trupia v. Lake George Cent. Sch. Dist.
| Citation | 927 N.E.2d 547,257 Ed. Law Rep. 812,14 N.Y.3d 392,2010 N.Y. Slip Op. 02833,901 N.Y.S.2d 127 |
| Parties | Anthony TRUPIA, an Infant, by His Parent and Guardian, Lawrence C. TRUPIA, et al., Respondents,v.LAKE GEORGE CENTRAL SCHOOL DISTRICT et al., Appellants. |
| Decision Date | 06 April 2010 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Benjamin R. Pratt, Jr., and Karla Williams Buettner of counsel), for appellants.
Ledwith & Atkinson, Lynbrook (Peter K. Ledwith of counsel), for respondents.
[14 N.Y.3d 393 , 927 N.E.2d 548] OPINION OF THE COURT
While attending a summer program administered by defendants on their premises, the infant plaintiff, Luke Anthony Trupia, rode and ultimately fell from a bannister, injuring himself seriously. The complaint seeks to recover principally upon a theory of negligent supervision; it alleges that at the time of the accident Luke, then not yet 12 years of age, had been left wholly unsupervised. This appeal arises from defendants' motion, granted by Supreme Court, but subsequently denied in the order we now review, to amend their answer to allege assumption of risk; defendants propose to seek dismissal of the action upon the ground that Luke may be deemed to have consented in advance to the risks involved in sliding down a bannister, among them falling from the railing, something which, evidently, had happened to him before.
The Appellate Division denied the sought amendment upon the ground that, under its cases and those of its First Department counterpart, the assumption of risk doctrine is not generally applicable in negligence actions to nullify a defendant's duty, but is appropriately interposed only to shield a defendant from exposure to liability arising from risks inhering in athletic and recreational activities (62 A.D.3d 67, 875 N.Y.S.2d 298 [3d Dept.2009] ). The Court did, however, note that the Second and Fourth Departments had permitted broader use of the doctrine, and presumably granted defendants leave to appeal from its unanimous decision so that the interdepartmental inconsistency over the applicability of the doctrine might be resolved. We now answer the question consequently certified to us by the Appellate Division—whether it erred “in reversing, on the law, the order of the Supreme Court by denying defendants' motion for leave to amend their answer to include the affirmative defense of primary assumption of risk?”—in the negative.
In 1975, following this Court's decision in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 [1972], where we held, in part, that the “[r]ight to apportionment of liability ... as among parties involved together in causing damage by negligence, should rest on relative responsibility and ... be determined on the facts” ( id. at 153, 331 N.Y.S.2d 382, 282 N.E.2d 288), the Legislature abolished contributory negligence and assumption of risk as absolute defenses and provided instead that
“[i]n any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages” (CPLR 1411 [emphasis added] ).
Nonetheless, assumption of risk has survived as a bar to recovery. The theory upon which its retention has been explained and upon which it has been harmonized with the now dominant doctrine of comparative causation is that, by 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 ( see Turcotte v. Fell, 68 N.Y.2d 432, 438–439, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986]. The doctrine, then, is thought of as limiting duty through consent—indeed, it has been described a
[927 N.E.2d 549 , 901 N.Y.S.2d 129]
“principle of no duty” rather than an absolute defense based upon a plaintiffs culpable conduct ( Morgan v. State of New York, 90 N.Y.2d 471, 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] [emphasis omitted]); accord Turcotte v. Fell, 68 N.Y.2d at 438, 510 N.Y.S.2d 49, 502 N.E.2d 964)—and, as thus conceptualized can, at least in theory, coexist with the comparative causation regimen. The reality, however, is that the effect of the doctrine's application is often not different from that which would have obtained by resort to the complete defenses purportedly abandoned with the advent of comparative causation—culpable conduct on the part of a defendant causally related to a plaintiff's harm is rendered nonactionable by reason of culpable conduct on the plaintiff's part that does not entirely account for the complained-of harm. While it may be theoretically satisfying to view such conduct by a plaintiff as signifying consent, in most contexts this is a highly artificial construct and all that is actually involved is a result-oriented application of a complete bar to recovery. Such a renaissance of contributory negligence replete with all its common-law potency is precisely what the comparative negligence statute was enacted to avoid.
The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in “facilitat[ing] free and vigorous participation in athletic activities” ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29 [1989]; Morgan, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202; see Turcotte, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964). We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation ( see Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 168, 490 N.Y.S.2d 751, 480 N.E.2d 365 [1985] ) that the Legislature has deemed applicable to “ any action to recover damages for personal injury, injury to property, or wrongful death” (CPLR 1411 [emphasis added] ).
No suitably compelling policy justification has been...
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