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Watersport or Horseplay? Risk Assumption Either Way.

November 23, 2016

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Plaintiff, Jin Chung, an experienced watersports instructor, was filming a wakeboarder while both were being towed by a boat on 60’ and 65’ towropes respectively.  When the boat turned as it neared the shoreline, it crossed its own wake.  The plaintiff was propelled into water and struck by the wakeboarder.  In the ensuing litigation, the issue was whether the plaintiff had assumed the risk of injury inherent in this recreational activity.
In <a href="">Chung v. Lehmann</a>, the Appellate Division, First Department affirmed dismissal of the action because it found that the plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged.  Although the plaintiff argued that the filming activity was actually horseplay rather than recreation, the court gave short shrift to this argument.  After all, the plaintiff was filming watersports on a lake known for this type of recreational activity.
The court also discounted plaintiff’s unsubstantiated argument that the boat’s operator acted recklessly.  Plaintiff argued that, even assuming the application of the assumption of risk doctrine, he could not be deemed to have assumed certain increased risks based upon the operator’s purported reckless behavior.  However, the plaintiff’s various criticisms with respect to the boat operator’s lack of attention, speeding, or sharp maneuvers were conclusory and without expert support.
As this case demonstrates, injuries resulting from commonly appreciated risks inherent in a recreational activity do not raise triable claims.
Thanks to Vincent Terrasi for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""><u></u></a>.

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