Generally, under New York law, the apportionment of contributory fault of a plaintiff is governed by CPLR 1411, which applies comparative negligence as a percentage to decrease the culpable conducts of the defendants, rather than act as a total bar to a plaintiff's claim. However, there are still circumstances where an "assumption of risk" applies as a complete bar to certain actions.
The Court of Appeals recently clarified this doctrine in <a href="http://www.nycourts.gov/ctapps/Decisions/2012/Oct12/164opn12.pdf" target="_blank" rel="noopener"><em>Custodi v. the Town of Amherst</em></a>, a lawsuit arising out of a rollerblading accident that the trial court had dismissed on summary judgment due to an assumption of the risk by the plaintiff. However, the Court of Appeals upheld the reversal by the appellate court, finding that the law did not apply to the facts before it.
The Court held that, "as a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues. In this case, plaintiff was not rollerblading at a rink, a skating park, or in a competition; nor did defendants actively sponsor or promote the activity in question."
Here, the plaintiff was injured when her skate struck the raised edge of the defendant's driveway in front of a private home on the street. Because those facts did not meet the limited circumstances described above by the Court, assumption of risk did not warrant dismissal. However, a jury could still consider plaintiff's comparative fault at trial.
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