Under the assumption of risk doctrine holds that a plaintiff participant is considered to have consented to any risks inherent in their sport or recreational activity. The doctrine has been historically applied in high school sports cases. The defendant school is relieved of the duty to protect the plaintiff from the assumed risks. The key word in the doctrine’s application is the term “inherent.” The Second Department’s latest interpretation of inherency narrows the application of the doctrine.

Doctrinal Background

In 1975, the absolute defense of implied assumption of risk was abolished and replaced

by CPLR § 1411, which provides:

In 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.

Prior to this, the doctrine acted as a complete bar to plaintiffs’ recovery where the injured plaintiff participated in a particular sport despite being aware of the associated risks. The doctrine no longer acts as a complete bar to plaintiff recovery. Rather, assumption of the risk sets the measure of a defendant’s duty of care and diminishes the amount otherwise recoverable by the plaintiff in proportion to the attributable culpable conduct. Turcotte v. Fell, 68 N.Y.3d 432, 439 (1986).

The goal of the doctrine is to encourage participation in sports, activities that add social value and create strong ties to the community. See Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657 (1989). The Court of Appeals has warned that improper application of the doctrine will only undermine, and essentially render useless, the CPLR’s emphasis on comparative causation. Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395 (2010).

Under the prior interpretation, assumption of risk would apply at the moment the plaintiff engaged in the injury-producing risk. Presently, assumption of risk begins at the time a player joins a team. See Turcotte, 68 N.Y.3d at 438. Although the plaintiff’s knowledge of the injury-causing risks involved in the sport is important in determining and valuing the degree of assumption, “inherency is the sine qua non.” Annitto v. Smithtown Cent. Sch. Dist., 210 A.D.3d 615, 623 (2d Dep’t 2022).

In Annitto, Plaintiff, a sophomore in high school and member of the varsity football team, was injured during an off-season weight training session. Id. at 622. The weight training session consisted of a “weight test” and was overseen by the high school football team’s coach, who required each player to have a spotter present during the lift. Id. A spotter’s responsibilities included standing near the lifter, with one hand on each side of the lifter to prevent them from falling forward or backward during their squat. Id. During his third repetition, Plaintiff lost control of the bar, causing his finger to be crushed between the weight bar and support rack. Id.

The Second Department, overturning the lower court decision, emphasized that the primary assumption of risk doctrine does not extend to engagement in acts, albeit during a sporting activity, that are not “commonly appreciated risks” inherent and arising out of the particular sport. Id. at 624. The court held that the getting in shape to participate in a school sport does not mean that a player assumed all risks associated with such process. Id. The risk of a weightlifting injury was not a risk inherent in the sport of football. Id. The defendant school district could not be relieved of its duty to oversee and protect its students from unsafe weightlifting conditions where the sport itself is not weightlifting. Id. at 625.

The only risks a plaintiff is considered to have assumed are those “known, apparent, natural, or reasonably foreseeable consequences” of one’s participation in a sport. Mamati v. City of New York Parks & Recreation, 123 A.D.3d 671 (2d Dep’t 2014). A plaintiff is not deemed to have assumed risks that are concealed or otherwise unreasonably increased beyond the typical risks that are inherent in the respective sport. Asprou v. Hellenic Orthodox Cmty. of Astoria, 185 A.D.3d 641, 643 (2d Dep’t 2020).

Assumption of Risk Applicable

A prime example of an injury-producing risk that is inherent in a sport is where a nationally ranked weightlifter was injured during a weightlifting competition. See Lee v. Maloney, 270 A.D.2d 689 (3d Dep’t 2000). The defendant school, in fulfilling its duty of reasonable care to protect participants, provided a fully attentive spotter. Courts scrutinize a plaintiff’s awareness of a risk based on the background, skill and experience of the plaintiff. Morgan v. State of New York, 90 N.Y.2d 471, 486 (1997). Because the plaintiff had engaged in the sport for nearly 14 years and won 22 events prior to the incident, the court found that inherent risks to be assumed in weightlifting include a risk where the lifter loses control of a heavily weighted bar resulting in injury. Lee, 270 A.D.2d at 690–91.

An inherent risk also exists in baseball where a pitcher is injured by a batter’s line drive during indoor batting practice. Even where the plaintiff had never before personally engaged in this type of “live” indoor practice, the activity was of the sort commonly appreciated in the risks associated with baseball. Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 355–56 (2012). The injured plaintiff had played baseball for over 13 years and had witnessed other pitchers getting hit by line drives. The court found the defendant school’s reliance on the assumption of risk doctrine appropriate. Bukowski, 19 N.Y.3d at 365.

A plaintiff who was injured while participating in an afterschool floor hockey game was deemed to have assumed the risks associated with the activity. Krzenski v. Southampton Union Free Sch. Dist., 173 A.D.3d 725 (2d Dep’t 2019). During the game, the gym bleachers were fully extended and used to mark sideline boundaries. After contact with another player, the plaintiff hit both her head and shoulder on the unpadded metal railing of the bleachers. The defendant schools’ failure to provide padding on the railing did not defeat the applicability of the doctrine. The plaintiff, having played floor hockey in the same conditions during gym class and other after school events, failed to refute the obvious, inherent risks of her participation in the sport.

The doctrine also extends to bystanders and spectators who attend or voluntarily place themselves in close proximity to sporting events. By entering the area where players engage in a sport, even an injured plaintiff who was not a participant is deemed to have assumed the risks associated with that sport. Upon entering a fenced-in field hosting a middle school lacrosse practice to engage in her own jogging, an injured plaintiff was found to have assumed the risk of getting struck by a loose lacrosse ball. Spiteri v. Bisson, 134 A.D.3d 799, 801 (2d Dep’t 2015). Similarly, an injured plaintiff struck by a foul ball after choosing to sit at picnic tables adjacent to minor league baseball fields was deemed to have assumed the risk of getting hit by a baseball. Rosenfeld v. Hudson Val. Stadium Corp., 65 A.D.3d 1117, 1118 (2d Dep’t 2009).

Assumption of Risk Inapplicable

The doctrine is otherwise not applicable where an injury-causing activity is not inherent in the participation of a particular sport. For example, the primary assumption of risk doctrine was not a viable defense where a high school soccer practice was held indoors, as opposed to the usual outdoor field due to inclement weather and resulted in a player’s injury from the altered training and practice drills. See Braile v. Patchogue Medford School Dist. Of Town of Brookhaven, 123 A.D.3d 960 (2d Dep’t 2014). During the practice, the coach required the players to run sprints in the hallways, during which the injured plaintiff was unable to stop her sprint in time, causing her face to strike a wall beyond the finish line. The defendant school district failed to establish that in joining the school’s soccer team, the player assumed a risk of sprinting in the hallways of the school. Running sprints in the school’s hallway and colliding with the wall is not an inherent risk in high school soccer. Id. at 962.

Where a high school softball practice was held on a grass field as opposed to its typical field, a plaintiff was injured during an infield sliding drill. Brown v. Roosevelt Union Free School Dist., 130 A.D.3d 852 (2d Dep’t 2015). Assumed risks also include those associated with “the construction of the playing surface and any open and obvious condition to it” so long as such risk was not unreasonably increased by the defendant. Id. at 853–54. The defendant school failed to establish that change of location and surface did not unreasonably increase the inherent risks associated with the sliding activity. Id. at 854. Reliance on the primary assumption of risk doctrine was not applicable.

During a game of recess touch football, the primary assumption of risk doctrine did not apply when a nine-year-old injured himself on playground equipment while diving for an airborne ball. M.P. v. Mineola Union Free Sch. Dist., 166 A.D.3d 953 (2d Dep’t 2018). Because playground equipment was not a part of the football field, the court determined that the risk of colliding with nearby playground equipment was not inherent in the game of touch football. Id. at 954–55. The school’s negligence in supervising the touch football game is not offset by any assumption of risk.

The doctrine is also inapplicable where junior varsity football players used the team’s blocking sled practice equipment to catapult one another into the air, resulting in injury to one of the teammates. Duffy v. Long Beach City Sch. Dist., 134 A.D.3d 761 (2d Dept’ 2015). Although the accident occurred prior to the beginning of practice, the coach was not deemed to have relinquished custody over the players and retained his duty to supervise the team. Id. at 763. The act of catapulting another into the air is not a commonly appreciated risk inherently found in football. Id. at 764.


In an effort to prepare their team for an upcoming season, coaches and schools will have to be conscious of their players' participation in activities that may not be characterized as “inherent” in their respective sport. Many schools and sports teams across the country engage their players in pre-season conditioning consisting of, for example, agility, flexibility, or weight training. In order to comply with the duty owed to the team’s players, schools must ensure that the utmost care and supervision exists before permitting this type of tangential training. An injury resulting from an act that is not commonly appreciated by nor inherent in a certain sport will not be afforded the protection of the primary assumption of risk doctrine.

Kenneth E. Pitcoff and Andrea M. Alonso are partners in the firm of Morris Duffy Alonso Faley & Pitcoff. Ilayna Guevrekian, a paralegal, assisted in the preparation of this article.