The Lawletter Vol 38 No 11
A 17-year-old high school senior at a public high school in New York state was injured while participating in a "Competition Night" activity at the high school gymnasium. She was in a relay race known as the "human railroad," in which student teams line up at a starting point, the first member of each team lies down on the gym floor and stretches his or her hands overhead, and the second team member then straddles the first one and lies down in front of the prone participant, who then grabs and holds on to the feet of the second team member. This linking is
then continuously repeated by all of the members of the team until they eventually return to the starting point. The winner is the team that first returns all of its members back to the starting point.
The plaintiff alleged that the student who was behind her "dove down too early" at one point in the race and made contact with the plaintiff's head, which then hit the floor. As a result, the plaintiff sustained a deviated septum. The defendant school district moved for summary judgment dismissing the complaint, contending, among other things, that under the doctrine of primary assumption of risk, the plaintiff had assumed the risk of her injury by voluntarily participating in a recreational activity. The trial court denied the motion, but the intermediate appellate court reversed. Shivers v. Elwood Union Free Sch. Dist., 971 N.Y.S.2d 568 (App. Div. 2013).
To preserve some beneficial pursuits as against the prohibitive liability to which they would otherwise give rise, risks of athletic and recreational activities may be voluntarily assumed, thereby foreclosing negligence claims for injuries arising from the activities. Thus, the doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and that flow from such participation. By voluntarily participating in the recreational human-railroad relay race activity during a school function, the student in Shivers was found to have assumed the risk of her injury, and her negligence claim against the school district was thus barred. The student had previously participated in the same relay race, and given the mechanics of the race, it was clear that a reasonable person who had observed or previously participated in such activity would have realized that it was, in the court's words, "fraught with risk for injury." Id. at 570.
It was not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which her injury occurred, so long as she was aware of the otential for injury of the "mechanism" from which the injury resulted. Moreover, contrary to her contention, the plaintiff could not avoid the assumption-of-risk defense, because she did not raise a triable issue of fact as to the existence of a dangerous condition over and above the risks inherent in the human-railroad relay race.
In contrast to Shivers is another case cited in Shivers for comparison's sake, Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist., 927 N.E.2d 547 (N.Y. 2010). There, the assumption-of-risk doctrine did not apply to bar a school district's liability for negligent supervision relating to an 11-year-old summer school student's fall while sliding down a stairway banister. The student's injury‑producing "horseplay" in Trupia was not an activity that lent itself to protection usually reserved for participation in athletic and recreative activities that possess "social value." The court's rationale was as follows:
Little would remain of an educational institution's obligation adequately to supervise the children in its charge (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ) if school children could generally be deemed to have consented in advance to risks of their misconduct. Children often act impulsively or without good judgment—that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so. If the infant plaintiff[']s harm is attributable in some measure to his own conduct, and not to negligence on defendants' part, that would be appropriately taken account of within a comparative fault allocation; it is not a predicate upon which an assumption of risk should be permitted to be applied.
We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school—only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable way enabled.
Id. at 549-50.