Under the doctrine of assumption of risk, a participant engaging in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport. The assumption of risk doctrine considers the appreciation of risk measured against the background of the skill and experience of the particular plaintiff.
In <i><a href="http://www.wcmlaw.com/PDF/tadmor.pdf">Tadmor v. New York Jiu Jitsu Inc</a>.,</i> plaintiff allegedly suffered an injury to his left knee while sparring with another student in a mixed martial arts class. It was plaintiff's first day in the advanced mixed martial arts class. He was injured while sparring with a "stockier" opponent. Notably, plaintiff expressed his concern about the match and only accepted the risk once the instructor had reassured him. The trial court denied defendant's motion for summary judgment, finding that plaintiff raised questions of fact as to whether he assumed the risk of injury through his participation in the advanced class.
The First Department reversed. The court noted that plaintiff had participated in sparring sessions within the beginner classes for over a month and a half. Additionally, plaintiff's experience included service in the Israeli army and 10 weeks of combat training (including instruction on hand-to-hand attacks).
Finally, plaintiff admittedly filled out an application where he wrote "yes" to prior martial arts experience and wrote a description of that experience as "survival krav maga."
Therefore, when determining if a plaintiff has assumed the risk of a recreational activity, it is important to question him about all of his training and experience. It is also critical to review the plaintiff’s applications. As <i>Tadmor</i> demonstrates, the Appellate Division will consider all aspects of a person’s background when determining if the doctrine applies.
Thanks to Bill Kirrane for his contributions to this post. For more information, please contact Paul Clark at <a href="mailto:firstname.lastname@example.org">email@example.com</a>.