COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 136 June 5, 1998

S.7172 By: Senator Santiago
A.10158 By: M of A Lentol

Senate Committee: Codes
Assembly Committee: Codes

Effective Date: Immediately

AN ACT to amend the civil practice law and rules, in relation to the recovery of damages

LAW AND SECTION REFERRED TO: CPLR 1411

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#46)
 

THIS BILL IS DISAPPROVED

        Based upon a limited legislative memorandum, this bill appears to address a perceived exception to the rule of comparative fault articulated by Article 14 of the CPLR: that an injured party's culpable conduct -- including comparative negligence and assumption of risk -- will not bar recovery, but may reduce the damages recoverable. The bill, by adding a subdivision (b) and reiterating that CPLR 1411 applies to "voluntary participation in competitive athletics", adds little, since the section already applies to all personal injury, property damage and wrongful death claims.

        What the proposal apparently addresses is an old concept with a new name. It has long been the law in this State that a voluntary participant in a sporting or recreational event assumes the inherent and visible risks of such participation. As Chief Judge Cardozo wrote in 1929: "one who takes part in such a sport accepts the dangers that inhere it in so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball . . ." (Murphy v. Steeple Chase Amusement Co., 250 N.Y. 479, 482-483 (1929)).

        Now called "primary assumption of risk", the concept has been consistently applied, but recently re-articulated -- if not expanded -- by the appellate courts. As the Court of Appeals explained in Morgan v. State, (90 N.Y.2d 471, 662 N.Y.S.2d 421, 426 (1997)):  

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks . . . The balance struck at the threshold duty stage of responsibility and adjudication is that the tort rules support a sound policy to "facilitate free and vigorous participation in athletic activities . . ." It is also important to appreciate that, by engaging in a sport or recreational activity, a participant consents to those community appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation . . ."
(Citations Omitted)
         This Committee expresses no opinion regarding the Legislative policy decision which underlies this proposed bill, although its thrust seems contrary to the "tort reform" initiatives presently before the Legislature. Intention notwithstanding, the bill as proposed would be ineffective. First, the proposal defines neither "participation" nor "competitive athletics", thus allowing the Courts to interpret the former to include or exclude spectators, but requiring these same courts to litigate, on a case-by-case basis, whether recreational swimming, karate and aerobics, for example, are "competitive" and whether recreational sledding and snowmobiling are "athletics". The bill as proposed invites litigation. Furthermore, making only competitive athletes the protected class undermines the basic philosophy that it is the neophyte and the non-professional who are in need of protection, not the experienced participant.

        In any event, the proposed amendment merely reiterates the requirement that the Courts follow the comparative negligence rule; the problem is that the Courts already believe that they are. Cases upholding primary assumption of risk often address CPLR 1411. Courts have consistently held that the concept does not violate comparative negligence principles since it arises out of the absence of duty on the part of a defendant to a voluntary participant in a sporting or recreational event and not from that participants' culpable conduct (see, Morgan v. State, supra, 662 N.Y.S.2d at 427).

        While the Courts may get the legislative message inherent in this proposal, they need not heed it. The only sure way to eliminate primary assumption of risk as a complete defense -- if one wishes to require every such case to go to trial on comparative fault -- is to prohibit the defense explicitly.

        For the same reasons, this bill's attempt to revive dismissed cases would be equally unavailing, since it only breathes new life into those which would have been dismissed but for the amendment. Such cases would arguably have been dismissed notwithstanding, on the ground that the successful defendant owed no duty to the injured participant.

For the foregoing reasons, this bill is DISAPPROVED.

Person Who Prepared This Report: James C. Gacioch, Esq.

Chair of the Committee: Paul H. Aloe, Esq.