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If You Can’t Take A Hit, Stay Off The Grass (NY)

May 22, 2019

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<p style="text-align: justify;">In <em><a href="">MF v. Jericho Union Free School District</a>,</em> a high school junior varsity football player sued his school after he was injured during practice.  The infant-plaintiff, not feeling well that day, decided not to participate in practice but chose, rather, to stand along the sideline and observe the plays.  During a drill involving a blocking sled, the plaintiff’s foot was injured by his teammates.  The school moved for summary judgment, arguing that the plaintiff’s lawsuit was barred under the “assumption of the risk” doctrine.  The lower court denied the motion.</p>
<p style="text-align: justify;">The Second Department reversed the decision and granted the defendant’s summary judgment dismissing all claims against it.  The appellate court noted that “under the doctrine of primary assumption of the risk, a person who chooses to engage in certain recreational or athletic activities consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”  Furthermore, the Court held that the doctrine applies when a consenting participant in a qualified activity is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risks.</p>
<p style="text-align: justify;">The Court further held that that the fact that the plaintiff was not participating in practice that day was inconsequential.  The doctrine of assumption of the risk “applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it, particularly where the record shows that the plaintiff had viable alternatives to his own location."  The decision noted the plaintiff’s own testimony where he admitted that, as he watched the drill that day, he saw the blocking sled veer in various different directions.   The Court also noted that the plaintiff was an experienced football player, having played football since he was seven years old, and attended 10 practices with the junior varsity team in the weeks before the incident.</p>
<p style="text-align: justify;">In our practice, we are frequently asked to represent schools and private leagues defending against similar claims.  The pertinent takeaway from this decision is that, in assessing liability exposure, the key factors to consider are whether the injury-producing activity held a common risk in the sport, the level of experience the plaintiff had in the sport, and plaintiff’s appreciation for this risk.</p>
<p style="text-align: justify;">Thanks to <a href="">George Parpas</a> for his contribution to this post.</p>


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