Primary Assumption of Risk Found Not to Apply to 12-Year-Old Child's "Horseplay"

PERSONAL INJURY – NEGLIGENT SUPERVISION – PRIMARY ASSUMPTION OF RISK
Trupia v. Lake George Cent. School Dist.
(Ct. Apps., decided 4/6/2010)

Those who deal with negligence claims should read this decision from the New York Court of Appeals, issued yesterday, in which the Court held that the Appellate Division properly denied leave to the school district defendant to amend its answer to assert a primary assumption of risk defense against a 12-year-old boy who was seriously injured when he slid down a bannister and fell on school property.  The defendant school district argued that the infant plaintiff could be deemed to have consented to in advance to the risks involved in sliding down a bannister and falling from the railing, something which, evidently, had happened to him before.

In his four-judge majority opinion for the Court, Chief Judge Jonathan Lippman reasoned:

No suitably compelling policy justification has been advanced to permit an assertion of assumption of risk in the present circumstances. The injury-producing activity here at issue, referred to by the parties as "horseplay," is not one that recommends itself as worthy of protection, particularly not in its "free and vigorous" incarnation, and there is, moreover, no nexus between the activity and defendants' auspices, except perhaps negligence. This is, in short, not a case in which the defendant solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity has been called to account in damages.  

Allowing the defense here would have particularly unfortunate consequences. Little would remain of an educational institution's obligation adequately to supervise the children in its charge (see Mirand v City of New York, 84 NY2d 44, 49 [1994]) if school children could generally be deemed to have consented in advance to risks of their misconduct. Children often act impulsively or without good judgment — that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so. If the infant plaintiff's harm is attributable in some measure to his own conduct, and not to negligence on defendants' part, that would be appropriately taken account of within a comparative fault allocation; it is not a predicate upon which an assumption of risk should be permitted to be applied. 

We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school — only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some non-culpable way enabled.

In his concurring opinion, in which Judges Read and Pigott joined, Judge Robert Smith agreed with the Court's answer to the Appellate Division's certified question, but expressed concern over the "sweeping pronouncements" he believes the majority's opinion needlessly makes, characterizing most of the majority's opinion as "extended dictum":

This seems to me an extremely easy case. Assumption of risk cannot possibly be a defense here, because it is absurd to say that a 12-year-old boy "assumed the risk" that his teachers would fail to supervise him. That is a risk a great many children would happily assume, but they are not allowed to assume it for the same reason that the duty to supervise exists in the first place: Children are not mature, and it is for adults, not children, to decide how much supervision they need. 

The majority makes this point, which is enough to dispose of the case, near the end of its opinion (majority op at 6: "Little would remain of an educational institution's obligation adequately to supervise the children in its charge . . . if school children could generally be deemed to have consented in advance to risks of their misconduct"). The rest of the majority opinion is, in my view, an extended dictum, which seems to say that the assumption of risk defense is largely if not entirely limited to cases involving "athletic and recreative activities" (majority op at 5).

Judicial rulings should answer more questions than they raise, especially when they come from a state's highest court.  It remains to be seen whether this decision will settle or further muddle the question of to what types of activities does New York's common law doctrine of primary assumption of risk apply?