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3rd Dept. Refuses to Apply Primary Assumption of Risk Doctrine to Trampoline Case

November 22, 2017

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In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2017/11/DeMarco-v.-DeMarco.pdf">DeMarco v. DeMarco</a></em>, the Third Department recently declined to apply the primary assumption of risk doctrine to jumping on a trampoline.
The case arose when the 48-year-old plaintiff was visiting the home of the defendants – her brother and sister in law – and plaintiff’s 9-year-old nephew asked her to join him on defendant’s trampoline. The plaintiff had never been on a trampoline before, but she agreed. After initially jumping in unison, the plaintiff’s nephew began “double jumping” the plaintiff, meaning he intentionally jumped out of unison with the plaintiff. This threw the plaintiff off balance, causing her land on the trampoline hard, fracturing several bones in her left foot. Plaintiff then commenced this action seeking damages from the defendants.
At trial, defendants sought a jury charge regarding primary assumption of risk. This request was denied and the court instead charged the jury regarding implied assumption of risk. The jury found in favor of the plaintiff and awarded her $220,000 for past pain and suffering and $580,000 for future pain and suffering.
On appeal, the Third Department noted that under CPLR 1411, any culpable conduct by plaintiff, including “assumption of the risk,” does not bar plaintiff’s recovery in New York. However, the Court of Appeals has held that CPLR 1411 does not prevent the primary assumption of risk doctrine from being used as a defense to tort recovery in cases involving certain sports or recreational activities.
But the Court of Appeals has also held that the assumption of risk doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation.” <em>See</em> <em>Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist.</em>, 927 N.E.2d 547 (2010). In practice, this means that the doctrine is limited to situations where it is considered appropriate to absolve a parties’ duty of care, such as certain designated sporting and recreational events. <em>See</em> <em>id</em>.
Defendants acknowledged that jumping on a trampoline did not fit on the narrow list of the activities that courts had previously applied the primary assumption of risk doctrine. However, they argued that applying the doctrine to the case at bar would be in keeping with the doctrine’s underlying purpose – to facilitate free and vigorous participation in athletics. The Court was not persuaded, and held that jumping on a trampoline was not the type of socially valuable activity that the doctrine seeks to encourage.
Interestingly, although the defendants also raised several issues regarding the substance of the implied assumption of risk jury charge, they failed to make those specific objections at trial. Rather, they only objected to the court’s decision to charge the jury with implied assumption of risk, instead of primary assumption of risk. Because of this, the Third Department held that these issues were not preserved for appellate review. Given the incredibly narrow scope of cases to which courts will apply the primary assumption of risk doctrine, it seems defendants would have been better served by focusing their fight on the substance of the jury charge that was actually given.  Thanks to Evan King for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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