State of New York

Court of Appeals

OPINION

This opinion is uncorrected and subject to revision 

before publication in the New York Reports.

No. 23 

Kevin Grady,

 Appellant,

 v.

Chenango Valley Central School 

District et al.,

 Respondents.

----------------

No. 24 

Joanne Secky, &c.,

 Appellant,

 v.

New Paltz Central School District 

et al., 

 Respondents.

Case No. 23:

Robert A. O'Hare, Jr., for appellant. 

Giancarlo Facciponte, for respondents. 

New York State Trial Lawyers Association, amicus curiae.

Case No. 24:

Steven A. Kimmel, for appellant. 

Christopher K. Mills, for respondents. 
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GARCIA, J.:

Since the enactment of the comparative fault regime of CPLR article 14 in 1975, 

this Court has retained a form of the primary assumption of risk doctrine, applicable only 

in a narrow set of circumstances, in recognition of the fact that “athletic and recreative 

activities possess enormous social value, even while they involve significantly heightened 

risks” (Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 [2010]). Both 
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plaintiffs here seek to recover for injuries sustained during organized sports practices for 

high school athletic teams, and appeal from orders granting defendants’ motions for 

summary judgment. Application of this well-established assumption of risk doctrine to 

these two cases produces different outcomes: in Secky, we affirm the order of the Appellate 

Division granting summary judgment, and in Grady, we reverse because material questions 

of fact remain. 

I.

The primary assumption of risk doctrine,1 as articulated by Judge Cardozo, is based 

on the premise that “ ‘[o]ne who takes part in . . . a sport accepts the dangers that inhere 

in it so far as they are obvious and necessary’ ” (Morgan v State of N.Y., 90 NY2d 471, 

482-483 [1997], quoting Murphy v Steeplechase Amusement Co., 250 NY 479, 482-483 

[1929]). Enactment of a comparative negligence standard in 1975, however, required this 

Court to reexamine the “fit,” or “continued viability,” of this long-standing common law 

assumption of risk doctrine (see Morgan, 90 NY2d at 483). The relevant statute provides 

that “[i]n any action to recover damages for personal injury, injury to property, or wrongful 

death, the culpable conduct attributable to the claimant or to the decedent, including 

contributory negligence or assumption of risk, shall not bar recovery, but the amount of 

damages otherwise recoverable shall be diminished in the proportion which the culpable 

conduct attributable to the claimant or decedent bears to the culpable conduct which caused 

1

“[A]s the term [assumption of risk] applies to sporting events it involves what 

commentators call ‘primary’ assumption of risk” (Turcotte v Fell, 68 NY2d 432, 438 

[1986]). 
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the damages” (CPLR 1411). Though we have acknowledged that the assumption of risk 

doctrine may not “sit comfortably” within the landscape of comparative fault, it remains in 

full force in the limited context of athletic and recreative activities (Trupia, 14 NY3d at 

395).

Our justification for retaining the doctrine in these circumstances is clear: because 

“athletic and recreative activities possess enormous social value, even while they involve 

significantly heightened risks,” we have “employed the notion that these risks may be 

voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability 

to which they would otherwise give rise” (id. at 395; see Custodi v Town of Amherst, 20 

NY3d 83, 87 [2012] [continued application of the assumption of risk doctrine “fosters these 

socially beneficial activities by shielding coparticipants, activity sponsors or venue owners 

from ‘potentially crushing liability’ ”], quoting Bukowski v Clarkson Univ., 19 NY3d 353, 

358 [2012]). At the same time, we are mindful that “application [of the assumption of risk 

doctrine] must be closely circumscribed if it is not seriously to undermine and displace the 

principles of comparative causation that the Legislature has deemed applicable to ‘any 

action to recover damages for personal injury, injury to property, or wrongful death’ ” 

(Trupia, 14 NY3d at 395-396, quoting CPLR 1411 [emphasis in original]). Accordingly, 

assumption of risk in this context “is no longer treated as a defense to the abandoned 

contributory negligence equation” (Morgan, 90 NY2d at 485). Rather, the doctrine defines 

“the standard of care under which a defendant’s duty is defined and circumscribed ‘because 

assumption of risk in this form is really a principle of no duty, or no negligence and 

so denies the existence of any underlying cause of action’ ” (id., quoting Prosser and 
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Keeton, Torts § 68 at 496-497 [5th ed 1984];see Trupia, 14 NY3d at 395 [doctrine “limit(s) 

duty through consent—indeed it has been described as a ‘principle of no duty’ rather than 

an absolute defense based upon a plaintiff’s culpable conduct”]).

In these limited circumstances, “primary assumption of the risk 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’ ” (Custodi, 20 NY3d at 88, 

quoting Bukowski, 19 NY3d at 356; see Turcotte v Fell, 68 NY2d 432, 439 [1986] [where 

“the risks of the activity are fully comprehended or perfectly obvious, plaintiff has 

consented to them and defendant has performed its duty”]). Moreover, “[i]t is not 

necessary to the application of assumption of risk that the injured plaintiff have foreseen 

the exact manner in which his or her injury occurred, so long as he or she is aware of the 

potential for injury of the mechanism from which the injury results” (Maddox v City of 

New York, 66 NY2d 270, 278 [1985]). A participant is not, however, deemed to have 

assumed “risks that are concealed or unreasonably enhanced” (Custodi, 20 NY3d at 88; 

see Bukowski, 19 NY3d at 356). The two cases we consider here provide an opportunity 

to apply these principles in the context of two quite different organized practice drills for 

high school athletic teams.

We reject the dissent’s entreaty to abandon decades of applicable precedent that has 

been so frequently, and so recently, reaffirmed (see Turcotte, 68 NY2d 432 [reaffirming 

approach in 1986]; Benitez, 73 NY2d 650, 657 [1989] [same in 1989]; Morgan, 90 NY2d 

471 [same in 1997]; Trevett v City of Little Falls, 6 NY3d 884, 885 [2006] [same in 2006];

Trupia, 14 NY3d 392 [same in 2010]; Bukowski ̧19 NY3d 353 [same in 2012]). “Even 
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under the most flexible version of the doctrine [of stare decisis], prior decisions should not 

be overruled unless a ‘compelling justification’ exists for such a drastic step” (State Farm 

Mut. Auto. Ins. Co. v Fitzgerald, 25 NY3d 799, 819 [2015]); see also Palladino v CNY 

Centro, Inc., 23 NY3d 140, 151 [2014] [considering “the Legislature’s competency to 

correct [judicial] misinterpretation” as a factor in favor of adhering to precedent]). Our 

stare decisis doctrine does not permit overturning precedent merely because “it’s time” 

(dissenting op at 1).2 Nothing more than the dissent’s unsupported assertion that “the 

policy concerns that animated the Court’s jurisprudence have proven unfounded” and 

references to “experience [that] teaches us that a policy driving our case law is 

unjustified”—without explanation of what that experience is—are provided to meet this 

significant burden (dissenting op at 7, 24 n 12).3 Instead of providing a “compelling 

justification,” the dissent summarily characterizes nearly 50 years of precedent as a 

2 The dissenting opinion’s reliance on the experience of other jurisdictions is less than 

compelling, since only two of eight cited cases involve circumstances in which this Court 

would apply the assumption of risk doctrine to bar recovery. Moreover, the dissenting 

opinion provides no support for its claim that the experience of other jurisdictions allowing 

for liability under these circumstances has shown that “the fear of ‘potentially crushing 

liability’ on school athletics has no basis in reality” (dissenting op at 23). The record before 

us is bereft of evidence that states opting to allow for liability in similar circumstances have 

not seen any cuts to scholastic sports budgets or even a chilling effect on employment in 

athletics in decades (dissenting op at 23 n 11), nor do we know what sorts of other 

limitations on liability and damages those states may impose. 

3 By comparison, the cases cited in the dissenting opinion as instances where the Court has 

“correct[ed] our mistaken interpretations of statutes” provide useful examples of the 

detailed analysis and compelling justification that must drive a decision to abandon decades 

of precedent (dissenting op at 24 n 12). 
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misinterpretation of CPLR 1411 (dissenting op at 2)—albeit one that the legislature has 

never sought to “correct.” 

II.

In Secky, the primary assumption of risk doctrine applies, and we affirm the 

Appellate Division order granting defendants’ motion for summary judgment. Plaintiff, 

who had played basketball at the highest amateur student level, was injured during a drill 

in which the players competed to retrieve a rebound. Plaintiff’s coach had explained that 

the boundary lines of the court would not apply during the drill and that only major fouls 

would be called. At the time of the drill, bleachers stationed near the court were retracted. 

Plaintiff was injured when, pursuing a loose ball from the top of the key towards the 

bleachers, another player collided with him, causing plaintiff to fall into the bleachers and 

sustain an injury to his right shoulder. Plaintiff, through his mother, sued the coach and 

the school district, and defendants moved for summary judgment. 

Supreme Court denied defendant’s motion because of conflicting expert testimony, 

and the Appellate Division reversed (195 AD3d 1347 [3d Dept 2021]). The Appellate 

Division majority held that elimination of the boundary lines during the drill “did not 

unreasonably increase the inherent risks of the drill or playing basketball,” and so plaintiff 

did not satisfy his burden on summary judgment (id. at 1349). One Justice dissented, 

asserting that “whether the elimination of boundaries and the relaxation of foul calls 

unreasonably enhanced the risk of the drill in this situation is . . . a question of fact to be 

determined by a jury” (id. at 1350). 
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We now affirm because plaintiff’s injury is one inherent in the sport of basketball

and so he assumed the risk of the injury he sustained. We have, in fact, previously held 

that “the risk of collision [with an open and obvious item near a basketball court] was 

inherent in playing on that court” and so plaintiff had assumed the risk of that injury

(Trevett, 6 NY3d at 885). “[A]lthough the assumption of risk to be implied from 

participation in a sport with awareness of the risk is generally a question of fact for a jury, 

dismissal of a complaint as a matter of law is warranted when on the evidentiary materials 

before the court no fact issue remains for decision by the trier of fact” (Maddox, 66 NY2d 

at 279). Here, no such fact issue remains. The drill assigned to plaintiff and his teammates 

did not unreasonably increase the risk of injury beyond that inherent in the sport of 

basketball, and the Appellate Division properly granted defendants’ motion for summary 

judgment. 

III.

In Grady, by contrast, material issues of fact remain to be resolved by a jury. 

Plaintiff, a senior on the Chenango Valley High School varsity baseball team, was injured 

during his participation in a fast-moving, intricate drill. The drill involved two coaches 

hitting balls to players stationed in the infield, with one coach hitting to the third baseman, 

who would then throw to first base, while another coach hit to the shortstop, who would 

throw to the second baseman who would, in turn, throw to a player at “short first base,” 

positioned a few feet from regulation first base. Because the drill required baseballs from 

two parts of the infield to be thrown to two players in the same area by first base, the 

coaches had positioned a protective screen, measuring seven by seven, between the 
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regulation first baseman and the short first baseman. Plaintiff, in the group of players 

assigned to first base, was injured when an errant ball, intended for the short first baseman, 

bypassed the short first baseman and the protective screen and hit him on the right side of 

his face, causing serious injury to his eye including significant vision loss. Plaintiffs sued 

his coaches and the school district, and defendants moved for summary judgment. 

Supreme Court granted defendants’ motion for summary judgment, finding that 

plaintiff was aware of the drill’s risks and his “awareness here was specifically related to 

this activity, the multiple ball drill which he had played on previous occasions and his 

specific awareness of errant throws immediately prior to this accident.” Accordingly, the 

court concluded that “plaintiff has failed to prove that he was faced with a risk that was 

unassumed, concealed or unreasonably increased and has failed to raise a triable issue of 

fact.”

The Appellate Division affirmed, holding that “the evidence showed that plaintiff 

was an experienced baseball player who knew of the risks, appreciated their nature and 

voluntarily assumed them, defendants demonstrated their prima facie entitlement to 

summary judgment under the primary assumption of risk doctrine,” and “plaintiff failed to 

raise a triable question of fact” in response (190 AD3d 1218, 1220-1221 [3d Dept 2021]). 

The majority concluded that “[h]aving more than one ball in play may not be an inherent 

risk in a traditional baseball game, but the record indicates that it is a risk inherent in 

baseball team practices” and that the small screen did not make the drill unreasonably 

dangerous because of plaintiff’s “testimony unequivocally establishing that he did not rely 

upon the screen for safety but, rather, thought that the drill was unsafe even in the presence 
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of the screen” (id. at 1220). One Justice dissented on the basis that a question of fact existed 

regarding the adequacy of the protective screen, while another Justice dissented because “a 

jury should be permitted to make the determination as to whether the drill was sufficiently 

related to the sport of baseball and whether it posed an unreasonable risk of harm” (id. at 

1221-1228). We now reverse. 

Defendants have not shown that, as a matter of law, plaintiff’s injury was sustained 

as a result of the inherent risk of baseball, or even due to “suboptimal playing conditions” 

(Bukowski, 19 NY3d at 357). Instead, plaintiff has raised triable questions of fact regarding 

whether the drill, as conducted here and with the use of the seven-by-seven-foot screen, 

“was unique and created a dangerous condition over and above the usual dangers that are 

inherent” in baseball (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]), and whether 

plaintiff’s awareness of the risks inherent in both the game of baseball and the practices 

that are a necessary part of participation in organized sports encompassed the risks arising 

from involvement in the drill performed here. Under these unique circumstances, because 

of the way this drill, with multiple balls in play directed to the same part of the field and 

with only a relatively small protective screen positioned in front of the first baseman, was 

conducted, we cannot say that, as a matter of law, the conditions of play were “as safe as 

they appear[ed] to be” (Turcotte, 68 NY2d at 439). While “[t]he line to be drawn and 

applied in this case is close, . . . plaintiffs have the better of it” (Morgan, 90 NY2d at 488). 

Errant balls may be an inherent risk of playing baseball, but a jury should be permitted to 

determine whether plaintiff’s injury was the result of such an inherent risk, or whether “the 

risks [were] concealed or unreasonably enhanced” by the complexity of the drill performed 
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with use of a small protective screen (Custodi, 20 NY3d at 88; see Bukowski, 19 NY3d at 

356). 

* * *

Accordingly, in Secky, the order of the Appellate Division should be affirmed, with 

costs. In Grady, the order of the Appellate Division should be reversed, with costs, and 

defendants’ motion for summary judgment denied. 
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RIVERA, J. (concurring in Grady and dissenting in Secky):

It’s time we correct the errors of the past and abandon the implied assumption of 

risk doctrine that the Court has retained despite the Legislature’s unequivocal abolition of 

contributory negligence and assumption of risk as complete defenses. New York is a 

comparative fault jurisdiction. Under that tort rule, the question of a defendant’s liability 
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should be submitted to the trier of fact with an appropriate charge on comparative 

culpability so that any damage award may be assigned based on each party’s fault, in 

accordance with CPLR Article 14-A. Therefore, the Appellate Division orders in the 

respective appeals before us should be reversed and the cases decided at trial because the 

defendants’ liability cannot be resolved on summary judgment. Although the majority 

reaches the correct outcome in Grady, it does so by applying several of the Court’s prior 

holdings that misinterpreted CPLR 1411’s plain text and thereby diminished the statute’s 

intended purpose. Under CPLR 1411, assumption of risk is a basis to reduce the plaintiff’s 

damage award, not to bar relief from injuries caused by a defendant’s tortious conduct.

I.

In 1975, the Legislature adopted a comparative fault regime, expressly abolishing

“contributory negligence and assumption of risk as absolute defenses” (Trupia v Lake

George Cent. School Dist., 14 NY3d 392, 394 [2010]). Specifically, CPLR 1411 

provides that

“[i]n any action to recover damages for personal injury, injury to property, 

or wrongful death, the culpable conduct attributable to the claimant or to the 

decedent, including contributory negligence or assumption of risk, shall not 

bar recovery, but the amount of damages otherwise recoverable shall be 

diminished in the proportion which the culpable conduct attributable to the 
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claimant or decedent bears to the culpable conduct which caused the 

damages” ([emphasis added]).

In accordance with our established rules of interpretation, we are bound to “ascertain 

and give effect to the intention of the Legislature” (McKinney’s Cons Laws of NY, Book 

1, Statutes § 92 [a], at 177), and the best evidence of that intent is the text as written, giving 

it its plain meaning (People v Cahill, 2 NY3d 14, 117 [2003] [citing Riley, 95 NY2d at 

463]; see also People v Galindo, 38 NY3d 199, 203 [2022]). On its face, the text sounds 

the death knell of contributory negligence and assumption of risk’s per se rule disallowing 

recovery by a plaintiff who shared some percentage of negligence in causing the underlying 

harm (see Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 165 

[1985]; Fitzpatrick v International Ry. Co., 252 NY 127, 134 [1929] [“(T)he slightest 

contributory negligence upon the part of the plaintiff, no matter how or by whom it may be 

proven, bars recovery, establishes that there is and was no cause of action, no right to 

damages”]).

Indeed, legislative history reveals a shared intent among all three branches of the 

government to abolish assumption of risk as an absolute bar to recovery—whether 

conceived as a measure of the defendant’s duty or as a defense to a breach of that duty. In 

the mid-1970s, members of the judiciary familiar with the assumption of risk doctrine first 

proposed in a Judicial Conference Report the enactment of CPLR 1411 as part of a broader 

legislative package and commented on the tendency of the doctrine’s emerging ‘no-duty’ 

rationale to devolve into a de facto bar to recovery. The report observed that “[o]n occasion, 

a New York court has taken the position that assumption of risk is not a mere defense to 
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an action for negligence, but actually negates any duty owed by the defendant to the 

plaintiff,” and cautioned that endorsement of “[s]uch an analysis would bar plaintiff’s 

recovery as a matter of law, thereby undermining the purpose of this article—to permit 

partial recovery in cases in which the conduct of each party is culpable” (13th Ann Rep of 

Jud Conf on CPLR, reprinted in 1975 McKinney’s Session Laws of NY at 1477, 1485). 

Thus, the Conference “expected that the courts will treat assumption of risk as a form of 

culpable conduct under this article” when applying the comparative negligence regime it 

proposed (id.).1 As the report further noted, the Legislature employed the term “culpable 

conduct” rather than “negligent conduct,” thus indicating its intent to have juries consider 

the conduct even of defendants who had acted reasonably (id.).

The legislative branch agreed and abolished assumption of risk as a bar to recovery. 

The Assembly Sponsor of the legislation that included CPLR 1411 explained:

“[T]he bill would equate the defenses of contributory negligence and 

assumption of risk under the rubric of ‘culpable conduct.’ This is consistent 

with the position taken by the New York courts (McFarlan v City of Niagara 

Falls, 247 NY 340, 349 [1928]). Unless assumption of risk is so treated, it 

would negate any duty owed by defendant to plaintiff (see McEvoy v City of 

New York, 266 App Div 445, 447 [2d Dept. 1943], affd 292 NY 654 [1944]), 

thus undermining the purpose of the proposed bill, which is to permit partial 

recovery in cases in which the conduct of each party is culpable” (Sponsor’s 

Mem, Bill Jacket, L 1975, ch 69 at 7; accord Mem of Jud Conf on CPLR, 

Bill Jacket, L 1975, ch 69 at 18; see also 13th Ann Rep of Jud Conf on CPLR, 

reprinted in 1975 McKinney’s Session Laws of NY at 1477, 1484 [noting 

that this interpretation of the provision ‘is consistent with the result reached 

in the vast majority of states that have adopted some form of comparative 

negligence’ ”]).

1 At the time, commentators had a similar expectation (see 1B Warren’s NY 

Negligence § 2.03, at 1028 [rev 2d ed 1980]).
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Finally, in a memorandum to the Governor regarding the legislation, the Attorney General

expressed in plainest terms that “[t]he bill abrogates the common law rules of contributory 

negligence and assumption of risk and establishes a rule of so-called ‘pure’ comparative 

negligence” (Mem of Attorney General, Bill Jacket, L 1975, ch 69 at 20).

II.

A.

Shortly after the Legislature passed CPLR 1411, the Court, despite the statute’s 

plain text and legislative history, breathed life into the old contributory negligence tort 

regime by resurrecting a vestigial form of implied assumption of risk labeled “primary” 

assumption of risk, resulting in a retention of the common-law distinction between implied 

and express assumption of risk. Under that framework, a plaintiff who is aware of and 

assumes the risks of an activity through their voluntary participation implicitly relieves a 

defendant of any duty of care to the plaintiff, while a plaintiff who expressly assumes a 

known risk—by, for example, contractually waiving liability—renders the defendant not 

liable for a breach of the duty of care (see Arbegast, 65 NY2d at 165-166). Put another 

way, a defendant owes no duty to a plaintiff who, through their participation, has implicitly 
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assumed the risk of the activity whereas a defendant is absolved of liability for a breach of 

their duty of care when a plaintiff expressly assumes the risks.2

For policy reasons, the Court has limited the doctrine to participants in professional 

and recreational sports (see Trupia, 14 NY3d at 395). “[T]he assumption of risk to be 

implied from participation in a sport with awareness of the risk is generally a question of 

fact for the jury” and “dismissal of a complaint as a matter of law is warranted when on the 

evidentiary materials before the court no fact issue remains for decision by the trier of fact” 

(Maddox, 66 NY2d at 279). And while the Court has acknowledged the “no-duty” 

conceptualization of “primary” assumption of risk, the Court has nonetheless imposed on 

defendants a modified, albeit narrow, duty of care. Specifically, a defendant has “a duty to 

exercise care to make the conditions as safe as they appear to be” (Custodi v Town of

Amherst, 20 NY3d 83, 88 [2012]). The Court has also cabined the scope of potential risks 

assumed by plaintiffs such that “participants are not deemed to have assumed risks 

resulting from the reckless or intentional conduct of others, or risks that are concealed or 

unreasonably enhanced” (id.).

As I discuss, and as plaintiff Grady contends, CPLR 1411 does not lend itself to this 

interpretation and we should no longer continue to hold that it does.3 Moreover, because

2 A defendant moving for summary judgment on this basis need not first “establish[ ] their 

own exercise of reasonable care” (Maddox v City of New York, 66 NY2d 270, 276 [1985]).

3 Contrary to the view of my dissenting colleague, Judge Singas (see dissenting op at 2), 

Grady’s challenge to the Court’s prior interpretation of CPLR 1411 is properly before us. 

Lower courts are bound to follow our rulings since, as the high Court of New York State, 

we are the only tribunal empowered to overrule our precedents (see New York Civ. Liberties
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the doctrine leads to results at times difficult to harmonize, and the policy concerns that 

animated the Court’s jurisprudence have proven unfounded, it is time to abolish the last 

remnant of the contributory fault era embodied in this vestigial “primary” assumption of 

risk doctrine. 

B.

The Court has elected to overrule prior precedent “only when there is a compelling 

justification for doing so” (People v Lopez, 16 NY3d 375, 384 n 5 [2011], including when

departure from stare decisis yields sounder jurisprudence (People v Peque, 22 NY3d 168,

194 [2013]; see also People v Hogan, 26 NY3d 779, 791 [2016] [Rivera, J., dissenting] 

[“Stare decisis is not meant to fit the Court like a straightjacket and to prevent mistakes 

from being rectified”]). Adherence to precedent is unjustified when: (1) the prior holding 

“leads to an unworkable rule, or . . . creates more questions than it resolves” (People v 

Taylor, 9 NY3d 129, 149 [2007]); (2) it “ ‘colli[des] with a prior doctrine more embracing 

in its scope, intrinsically sounder, and verified by experience’ ” (Hobson, 39 NY2d at 487, 

quoting Helvering v Hallock, 309 US 106, 119 [1940]); (3) subsequent controlling 

pronouncements have thrown the precedent into doubt so that it “no longer serves the ends 

of justice or withstands the cold light of logic and experience” (Policano v Herbert, 7 NY3d 

588, 604 [2006] [internal quotation marks omitted]; see also People v Reome, 15 NY3d, 

Union v New York City Police Dept., 148 AD3d 642, 644 [1st Dept 2017], affd 32 NY3d 

556 [2018] [“(W)e cannot overrule . . . Court of Appeals decisions . . . and are obligated 

to reverse based on this controlling precedent]). Such a claim is therefore the ne plus ultra

of “contentions which could not have been so obviated or cured below” and may be raised 

before us for the first time (Telaro v Telaro, 25 NY2d 433, 439 [1969]).
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188, 194 [2010]), or, more generally, (4) the precedent has simply been undermined by 

“the ‘lessons of experience and the force of better reasoning’ ” (Bing, 76 NY2d at 338, 

quoting Burnet v Coronado Oil & Gas Co., 285 US 393, 407-408 [1932, Brandeis, J., 

dissenting]) such that the prevailing rule has ossified into an “archaic and obsolete doctrine 

which has lost its touch with reality” (Hobson, 39 NY2d at 487).

Critically, where “[l]egislative correction is confined[,] . . . [t]ort cases, but 

especially personal injury cases, offer another example where courts will, if necessary, 

more readily re-examine established precedent to achieve the ends of justice in a more 

modern context” (id. at 489). Such follows from the broader principle that 

“[s]tare decisis does not compel us to follow blindly a court-created rule . . . once we are 

persuaded that reason and a right sense of justice recommend its change” (Silver v Great

Am. Ins. Co., 29 NY2d 356, 363 [1972]). Such change is plainly called for here.

C.

A review of the Court’s seminal decisions on assumption of risk confirms that the 

Court has misapplied CPLR 1411 by retaining a bar to recovery in contravention of the 

text and the legislature’s intent that fact finders apportion liability commensurate with the 

culpability of each party’s conduct. In Arbegast, the Court read CPLR 1411 as “requir[ing] 

diminishment of damages in the case of an implied assumption of risk” (65 NY2d at 170). 

Abergast involved a student teacher who was injured during a donkey basketball game 

when she fell off the animal at a fund-raising event for the high school’s senior class (id.
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at 162-163).4 The Court reasoned that CPLR 1411 compares “blameworthy” conduct rather 

than negligence and thus focuses on “[c]omparative causation” (id. at 168). The Court

further noted that CPLR 1411 did not define “assumption of risk” and read the term as 

“requir[ing] diminishment of damages in the case of an implied assumption of risk but, 

except as public policy proscribes an agreement limiting liability, does not foreclose a 

complete defense that by express consent of the injured party no duty exists and, therefore, 

no recovery may be had” (id. at 170). Because the plaintiff conceded she was informed 

before the games began that “participants are at their own risk[,]” she was not entitled to a 

jury instruction on comparative negligence based on implied assumption of the risk (id. at 

171). Thus, Arbegast dealt only with an “express consent by the plaintiff that no duty 

exists” which is “a complete defense” (id. at 170).

A few months later, the Court applied these principles in Maddox v City of New 

York, which, unlike the plaintiff’s express assumption of risk in Arbegast, involved an 

implied assumption of risk based on a plaintiff’s knowledge of the inherent risks associated 

with their conduct (66 NY2d 270 [1985]). There, Elliot Maddox, a professional baseball 

player for the New York Yankees, sued several defendants—including the City (which 

owned Shea Stadium), the lessee Metropolitan Baseball Club, Inc., and the stadium’s 

4 The game is as a basketball game with two teams of four players who “must be astride” 

atop donkeys “in order to shoot, pass, or play defense” (see Katie Thomas, Donkey 

Basketball Holds on Despite Criticism, NY Times, Apr. 17, 2009, available at

https://www.nytimes.com/2009/04/18/sports/othersports/18donkey.html [retrieved Apr. 3, 

2023]). Although the game resulted in injury to the plaintiff, it was no fun for the donkey 

who had to bear her weight as she commanded it around the “court.”
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general contractor, architect, and consulting engineer—alleging that the stadium’s 

negligently-designed drainage system caused his left foot to slip as his right foot became 

stuck in a mud puddle, resulting in a career-ending knee injury (id. at 275). The Court 

concluded that the defendants were entitled to summary judgment because Maddox had 

conceded that he continued playing in the game “with the knowledge and appreciation of 

the risk” that caused his injury (id. at 276). In reaching this determination, the Court 

explained that the assumption of the risk doctrine “requires not only knowledge of the 

injury-causing defect but also appreciation of the resultant risk,” which “is not to be 

determined in a vacuum” (id. at 278 [cleaned up]). “[R]ather,” the Court continued, that 

risk must be “assessed against the background of the skill and experience of the particular 

plaintiff and in that assessment a higher degree of awareness will be imputed to a 

professional than to one with less than professional experience in the particular sport” (id.

[cleaned up]).5In adopting this approach, the Court joined several other state courts which

had “redefined” the doctrine “to allow the notion of assumption of risk to remain a viable 

defense even with the advent of modern comparative fault concepts” (Alexander J. 

5 The Court acknowledged that the injuries giving rise to Maddox occurred before 

CPLR 1411’s passage and that it was thus “at liberty to modify the common-law rules of 

assumption of risk” but “decline[d] to take that step” (66 NY2d at 277).
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Drago, Assumption of Risk: An Age-Old Defense Still Viable in Sports and Recreation

Cases, 12 Fordham Intell Prop Media & Ent LJ 583 [2002]).6

The following year in Turcotte v Fell, the Court definitively adopted the “no duty”

rationale in another implied consent case (68 NY2d 432, 438 [1986]). Unlike Christy 

Arbegast, but like Elliot Maddox, the plaintiff in Turcotte was a successful professional 

athlete. Ronald Turcotte had a 17-year career as a jockey, best known for riding Secretariat 

to the Triple Crown victory in 1973 (see 68 NY2d at 435). Five years later during a race at 

New York’s Belmont Park, he suffered a devastating injury when, after being clipped by 

another jockey he was thrown from his horse. The injury rendered him a paraplegic and 

ended his racing career (id. at 435-436). The Court explained that, because CPLR 1411 

abolished assumption of risk as an absolute defense, “it ha[d] become necessary and quite 

proper, when measuring a defendant’s duty to a plaintiff to consider the risks assumed by 

the plaintiff” because assumption of risk “is simply a confusing way of stating certain no6 The Legislature adopted comparative fault at a time when detractors opposed this 

legislative tort reform. As one commentator observed in 1963, certain “lobby and pressure 

groups” with economic interests in maintaining contributory negligence regimes “[we]re 

active and successful in preventing bills incorporating comparative negligence principles 

from obtaining full legislative consideration” (Cornelius J. Peck, The Role of the Courts

and Legislature in the Reform of Tort Law, 48 Minn L Rev 265, 305 [1963]; see also id. at

n 180 [collecting examples of failed comparative-negligence legislation]). Even some 

jurists offered reasons for opposing comparative fault (see e.g. Vincent v Pabst Brewing

Co., 47 Wis 2d 120, 129, 177 NW2d 513, 517 [1970] [expressing concern that “pure 

comparative negligence would render defendants the insurers of any who chose to 

commence an action”]; see also Alvis v Ribar, 85 Ill 2d 1, 41, 421 NE2d 886, 904 [1981] 

[Ryan, J., dissenting] [“Under pure comparative negligence, as adopted by the majority, 

the injured plaintiff will have the best of both worlds. (They) will be able to recover for 

(their) injuries without fault and at the same time not be limited in the amount (they) may 

recover”]). CPLR 1411 reflects our State’s rejection of these alarmist views.
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duty rules” (id. at 438 [internal quotation marks omitted]). As applied to sporting events, 

the defendant thus has “a duty to exercise care to make the conditions as safe as they appear 

to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has 

consented to them and defendant has performed its duty” (id. at 439). In analyzing “the 

nature and scope of [the] plaintiff’s consent,” the Court noted that “[i]t would be a rare 

thing indeed, if the election of a professional athlete to participate in a sport at which he 

makes his living could be said to be involuntary” (id.). The Court noted that “while the 

courts ha[d] traditionally exercised great restraint in the belief that ‘the law should not place 

unreasonable burdens on the free and vigorous participation in sports’, they ha[d]

recognized that organized, athletic competition does not exist in a vacuum” and that

“[s]ome ‘of the restraints of civilization must accompany every athlete onto the playing 

field’ ” (id., citing Nabozny v Barnhill, 31 Ill App 3d 212, 214-215, 334 NE2d 258, 260 

[Ill App Ct 1975]). “Manifestly,” the Court went on to say, “a professional athlete is more 

aware of the dangers of the activity, and presumably more willing to accept them in 

exchange for a salary, than is an amateur” (id.).

Applying these principles, the Court explained that Turcotte was a professional 

jockey who knew horse racing was a dangerous activity, involving thoroughbreds that

“weigh[ ] half a ton and can reach speeds of 40 miles per hour or more” and that “[j]ockeys 

weighing between 100 and 120 pounds, attempt to control” the horse while maximizing 

speed to win (id.). Indeed, the plaintiff testified that during a race a horse could lawfully 

run outside their lane and may come within inches of other speeding horses, bumping one 
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another (id.). “Such dangers[,]” the Court concluded, [we]re inherent in the sport” and since 

the plaintiff “recognized as such[,] . . . he consented to relieve defendant” of liability (id.

at 441).

However, the Court drastically expanded this limited carveout for professional 

athletes to bar recovery for a 19-year-old student football player only three years later in

Benitez v New York City Bd. of Educ. (73 NY2d 650 [1989]). Plaintiff Sixto Benitez broke 

his neck during a varsity game. The record established that the plaintiff was playing a 

“Division A” team even though the coach felt this was unsafe because his “players were 

fatigued” and he “did not have the personnel to rest [plaintiff] Benitez[,] and was aware 

that injuries are most likely to occur when players are tired” (id. at 654-655). Nevertheless, 

the coach “did not unilaterally cancel the game because he feared it might cost him his job” 

(id.). The plaintiff testified that he was fatigued when he was injured but did not tell the 

coach (id.). He also had motives to play, namely several pending football scholarship offers 

(see id.). To justify applying the rule to this student player, the Court adopted a type of 

sliding-scale assessment of physical skill and sports knowledge: “a high school athlete, 

even an outstanding one, does not assume all the risks of a professional sportsperson, 

neither does a 19-year-old senior star football player and college scholarship prospect fall 

within the extra protected class of those warranting strict parental duties of supervision” 

(id. at 657-658).7

7 While the Court appears to have responded in part to the trial court’s jury instruction that 

the defendants were required to exercise “the same level of care ‘as a parent of ordinary 

prudence would exercise under the same circumstances[,]’ ” the Court set a line to be 
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Notably, the Court stated that “[p]layers who voluntarily join in extracurricular 

interscholastic sports assume the risks to which their roles expose them but not risks which 

are unreasonably increased or concealed” (id. at 658 [internal quotation marks omitted]). 

In other words, the Court subjected the plaintiff student to the same standard it had applied 

affirmed the jury’s finding that the plaintiff had only been 30% at fault based on its 

conclusion that the plaintiff’s evidence made a prima facie showing that the defendants 

were negligent in their “duty to supervise the activities of the students in its charge” 

(Benitez v New York City Bd. of Educ., 141 AD2d 457, 459 [1st Dept 1988]). Specifically, 

the Appellate Division reasoned:

“The evidence here indicates that defendants unreasonably enhanced or 

increased the risk of plaintiff being injured by playing him in a game between 

mismatched teams and by playing him for virtually the entire game, while he 

was tired, because there was no adequate substitute for him. While plaintiff 

was a voluntary participant in the game, never having complained of being 

tired, the law does recognize, especially in student-teacher relationships, that 

a degree of indirect compulsion exists, nonetheless. The rationale is that the 

student is understandably reluctant to refuse to participate for fear of the 

negative impact such refusal might have on his or her grade or standing. Such 

reasoning applies here. Plaintiff was “ ‘one of the best football players to 

come out of GW’ ”; he had a “ ‘drawer full’ ” of letters from colleges. In 

such circumstances, it is not at all surprising nor legally fatal to his cause that 

plaintiff had not asked to be taken out of the game.

Our analysis of the record reveals sufficient competent evidence which, if 

accepted, makes out a prima facie case that defendants were negligent in 

permitting plaintiff to play in a game in which his team was greatly 

outmatched and in circumstances in which the likelihood of his being injured 

was significantly enhanced. The question of plaintiff's own negligence was, 

of course, submitted to the jury, which assessed it at 30%.

Defendant’s dire forecast that a finding of liability here will open the 

floodgates and lead inevitably to the total collapse of the Board of 

Education’s interscholastic sports program is somewhat overstated, to say 

the least. This is an unusual case, one in which the very incident which 

occurred was predicted” (id. at 459-460 [internal quotation marks omitted]).
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to professional athletes. Under that standard, the Court concluded that the defendant had 

not increased or concealed the risk, which instead was “[w]ithin the breadth and scope of 

[the plaintiff’s] consent and participation” (id. at 659). Thus, the “plaintiff put himself at 

risk in the circumstances of this case for the injuries he ultimately suffered” (id.). Eliding 

the context in which the plaintiff’s action arose, the Court opined that the injury “in sum, 

was a luckless accident arising from the vigorous voluntary participation in competitive 

interscholastic athletics” (id.). But plainly nothing about the plaintiff’s presence and play 

on the field that day was “luckless” or an “accident” (id.). Rather, school officials made a 

choice to pit these students in a close-contact game, against better-prepared, 

physically-dominant players, despite knowing the high risk of serious injury to plaintiff 

and his teammates.

In Morgan v State of New York, the Court decided four appeals—Morgan, Beck, 

Chimerine, and Siegel—and again drew no legally significant distinction among 

professional, amateur and recreational sports participants (90 NY2d 471 [1997]). Morgan

involved “an amateur bobsledder who had competed in the Olympic Games and had been 

bobsledding at [the site of the injury] for over 10 years prior to the accident” (id. at 480). 

Beck involved a 30-year-old orange belt who had been training for over a year at the karate 

school where the injury occurred (id. at 481). Chimerine was a relative novice to martial 

arts, having been injured during her fourth class at the defendants’ school (id. at 481). In 

all three cases, the Court concluded that the plaintiffs assumed the risk of the respective 

sports in which they participated (see id. at 486-489). In contrast, the Court determined that 
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the plaintiff in Siegel—a 60-year-old tennis player who tripped over a torn net bisecting 

the court—had not assumed the risk even though he was aware of the problem for over two 

years (id. at 482). As the Court explained, “[r]elieving an owner or operator of a sporting 

venue from liability for inherent risk of engaging in a sport is justified when a consenting 

participant is aware of the risks; has an appreciation of the nature of the risks; and 

voluntarily assumes the risks” (id. at 484). Even though plaintiff Siegel was well aware of 

the torn net, the Court concluded that “a torn or allegedly damaged or dangerous net is by 

its nature not automatically an inherent risk of a sport as a matter of law for summary 

judgment purposes” but “may qualify as and constitute an allegedly negligent condition 

occurring in the ordinary course of any property’s maintenance and may implicate typical 

comparative negligence principles” (id. at 488). But the very fact of the net’s placement 

as a divider of indoor courts illustrates the inherent risk of the indoor version of tennis.

Despite its earlier no-duty assumption of risk rhetoric, the Court repeated the 

established standard that “for purposes of determining the extent of the threshold duty of 

care, knowledge plays a role but inherency is the sine qua non” (id., citing Maddox, 66 

NY2d at 270; Turcotte, 66 NY2d at 443; Scaduto v State of New York, 56 NY2d 762 [1982], 

affg 86 AD2d 682). The Court reaffirmed that defendants carry a duty because “participants 

will not be deemed to have assumed the risks of reckless or intentional conduct or 

concealed or unreasonably increased risks” (id. at 485 [internal citations omitted]).

In Bukowski v Clarkson Univ., the Court acknowledged “the injury risks attendant 

to participation in organized sports” (19 NY3d 353, 355 [2012]), and concluded that a 
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college student baseball player assumed the risk of being hit by a line drive inherent in an 

indoor practice without the use of a protective L-screen (see id. at 356-358).8 Rather than 

treating the lack of a protective net as an “unreasonably increased risk” of the practice, the 

Court concluded that the “experienced and knowledgeable baseball player” assumed the 

inherent risk of playing without the protective screen, as well as the “less than optimal” 

indoor lighting (id. at 357). This conclusion is difficult to reconcile with the Court’s 

analysis of the torn net in Siegel when, in both cases, the plaintiff was aware of the 

enhanced risks that the relevant playing conditions presented.

Any semblance of a unifying principle disappeared in Custodi, which involved a 

plaintiff rollerblading in her neighborhood who fell when her skate struck the elevated edge 

between the defendant’s property and the drainage culvert on the street (20 NY3d at 86).

The Court acknowledged that “[a] person who engages in [a sports] activity consents to 

those commonly appreciated risks which are inherent in and arise out of the nature of the 

sport generally and from such participation” and that “[t]he duty owed in these situations 

is a duty to exercise care to make the conditions as safe as they appear to be” (id. at 88 

[internal quotation marks omitted). Nevertheless, the Court concluded that assumption of 

the risk is “limited to sporting events, sponsored athletic and recreative activities, or athletic 

and recreational pursuits that take place at designated venues” (id. at 89). The plaintiff was 

not skating in such a venue or a sponsored competition and therefore the doctrine did not 

8 As the Court noted in Bukowski, “[a]n L-screen is a net strung on a thin, metal frame 

shaped like a block L that protects pitchers from balls that are batted back at them” (19 

NY3d at 358 n *).
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bar her potential recovery for damages. The Court explained that extending the doctrine to 

cases involving streets and sidewalks “would create an unwarranted diminution of the 

general duty of landowners—both public and private—to maintain their premises in a 

reasonably safe condition” (id.). Again, the Court made a policy choice which cannot be 

squared with the express language of CPLR 1411 or the legislative intent to apply 

comparative negligence to all personal injury actions. Moreover, there is no compelling 

basis for excluding sports venue owners from the general rule that property owners are 

liable for their negligence. Certainly the owners of Madison Square Garden or the Barclays 

Center, or for that matter University at Buffalo, can more easily afford insurance than Town 

of Amherst residential home owners defendants Peter and Susan Muffoletto (see id. at 86).9

D.

As this discussion reveals, the Court has constructed a strange judicial artifice that 

assumption of risk limits the defendant’s duty to a plaintiff based on the plaintiff’s consent 

to participate in inherently-risky conduct. Practically, however, the Court has treated 

assumption of risk as a “principle of no duty” (Trupia, 14 NY3d at 395), making passing 

9

Judge Singas quotes this language out of context to support a completely different point 

that, unlike the owners of these professional sports facilities, “many youth programs, 

especially those serving disadvantaged children, may not be so fortunate” as to be in a 

position to purchase insurance (dissenting op at 4). Even if that were true, the Court’s 

retention of this doctrine ensures that such children—already burdened with the 

economically and socially destructive consequences of poverty—who suffer debilitating 

injuries while engaged in organized sports will remain barred from recovering and be left 

to fend for themselves (see e.g. Benitez, 73 NY2d at 654-655, 659).
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reference to the event sponsor or venue owner’s minimal duty of care to the participants. 

The Court’s approach is irreconcilable with the statutory language and the intended goal 

of providing a path to recovery for plaintiffs partially responsible for their injury (see 

Hobson, 39 NY2d at 487, 489). As this Court candidly acknowledged in Trupia: 

“The reality [] is that the effect of the doctrine’s application is often not 

different from that which would have obtained by resort to the complete 

defenses purportedly abandoned with the advent of comparative causation—

culpable conduct on the part of a defendant causally related to a plaintiff’s 

harm is rendered nonactionable by reason of culpable conduct on the 

plaintiff’s part that does not entirely account for the complained of harm.

While it may be theoretically satisfying to view such conduct by a plaintiff 

as signifying consent, in most contexts this is a highly artificial construct and 

all that is actually involved is a result-oriented application of a complete bar 

to recovery. Such a renaissance of contributory negligence replete with all its 

common-law potency is precisely what the comparative negligence statute 

was enacted to avoid” (Trupia, 14 NY3d at 395).

Aside from the ends justifying the rule, members of the Court have acknowledged that the 

carve-out for sports activities poses its own challenges. As observed by Judge Smith in his 

Trupia concurrence, the majority’s commentary on the implied assumption of risk doctrine 

“invite[d] a number of questions[,]” including “What exactly is ‘athletic or recreative’ 

activity?” (id. at 397 [Smith, J., concurring]). Trupia, Judge Smith noted, involved a child 

who was injured after sliding down the banister of a school staircase and though he agreed 

that “[a]ssumption of risk [could not] possibly be a defense because it is absurd to say that 

a 12-year-old boy ‘assumed the risk’ that his teachers would fail to supervise him[,]” he 

also pointedly asked: (1) why the plaintiff’s “chosen activity” was not “recreative” when 

“[h]e was obviously doing it for fun[;]” (2) why “sliding down a banister (supposing it to 

be done by an adult with a taste for such amusement) of less social value than sliding down 
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a ski slope or bobsled run[;]” and (3) why, if the athletic and recreative activities recognized 

in prior cases were “more socially valuable than the former[,] . . . the banister slider, who 

chose the less desirable form of amusement, [is] in a better position to recover damages 

than the skier or bobsledder” (id. [emphasis added]).

Notwithstanding these flaws in reasoning and application, the Court has justified its 

retention of the doctrine based on its “utility in ‘facilitat[ing] free and vigorous 

participation in athletic activities’ ” which, the Court determined, “possess enormous social 

value” (id., quoting Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989] 

[alterations in original]). The Court has further specified that the doctrine “shields college 

athletics from potentially crushing liability” (Bukowski, 13 NY3d at 358).

Given CPLR 1411’s enactment, such value-laden concerns are “ ‘matters for the 

judgment of the Legislature, and the earnest conflict of serious opinion does not suffice to

bring them within the range of judicial cognizance’ ” (Montgomery v Daniels, 38 NY2d 

41, 53 [1975], quoting Chicago, B. & Q.R. Co. v McGuire, 219 US 549, 569 [1911]). In 

other words, “the province of the courts does not extend to the wisdom, necessity or 

motivation of legislation” (Ball v State of New York, 41 NY2d 617, 625 [1977]). The 

Court’s task then—as it is now—was to apply CPLR 1411 “as it is written by the 

Legislature, not as the [C]ourt may think it should or would have been written if the 

Legislature had envisaged all the problems and complications which might arise”
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(Parochial Bus Sys., Inc. v Board of Educ. of City of New York, 60 NY2d 539, 548-49 

[1983]).

Indeed, for just this reason legal commentators have been sharply critical of the 

Court’s policy-driven retention of the doctrine in the face of CPLR 1411 (e.g. Danielle 

Clout, Note, Assumption of Risk in New York: The Time Has Come to Pull the Plug on This

Vexatious Doctrine, 86 St John's L Rev 1051, 1063-1071 [2012] [criticizing the Court’s 

shifting justifications for retaining assumption of risk and undermining CPLR 1411]; 

Drago, 12 Fordham Intell Prop Media & Ent LJ at 583 [observing that “[t]he distinction 

between” assumption of risk and contributory negligence, “once largely irrelevant because 

both completely barred recovery, has been redefined to allow the notion of assumption of 

risk to remain a viable defense even with the advent of modern comparative fault 

concepts”]; Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modern

American Tort Law, 26 Ga L Rev 601, 671-672 [1992] [noting that, “(b)y 1980,” 

assumption of risk “seemed just about extinct: courts disapproved of explicit contractual 

disclaimers of liability, and courts were inclined to “ ‘merge’ ” implied assumption of risk 

into comparative negligence” and bemoaning this Court’s continued invocation of “the 

concept of assumption of risk to completely deny the defendant’s liability”]).

In addition to the Court’s interpretive rules meant to restrain the Court from acting 

in contravention of the legislative will, the Court’s ‘enormous social value’ standard for 

application of the doctrine is difficult to justify on its own terms, and therefore no longer 

“withstands the cold light of logic and experience”—assuming it ever did (Policano, 7 
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NY3d at 604). Many socially beneficial nonathletic activities carry inherent risks of 

injury—for example, operating a motor vehicle—and lawsuits for injuries arising from 

these activities are evaluated under our comparative fault regime. Further, even if it is 

logical to hold that a commercially-paid professional athlete has the insight and knowledge 

born from experience to fully appreciate and voluntarily assume the inherent risks in a 

sport, it is quite another matter to bar student and amateur athletes, and people enjoying 

recreational activity from all tort recovery. The Court’s policy concern that sporting 

opportunities will evaporate does not explain the bar to recovery against a for-profit martial 

arts school in Morgan (90 NY2d at 487). Nor, on the flip side, does it explain exempting 

the residential property owner from injuries incurred by a rollerblader in Custodi (20 NY3d 

at 83). Yet, under those, and the other precedents summarized above, a racecar driver 

headed to the Riverhead Raceway on Long Island to compete in a race may sue for injuries 

suffered on the road during the drive to the track, but would be barred from recovering

against the track owner for negligently maintaining the venue as soon as their wheels touch 

the racetrack. Surely, the Legislature did not intend such absurd outcomes when it passed 

CPLR 1411 (see Lubonty v U.S. Bank N.A., 34 NY3d 250, 255 [2019] [“We 

must . . . interpret a statute so as to avoid an unreasonable or absurd application of the law”] 

[internal quotation marks omitted]).

While opportunities for children and adults to engage in physical activities and team 

athletics is beneficial for participants and has tremendous social value, other jurisdictions 

with comparative negligence laws have abolished assumption of risk as a complete defense 
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without seeing an end to youth sports or youth leagues (see e.g. World Fresh Markets, LLC

v Palermo, 74 VI 455, 469 [2021]; Rountree v Boise Baseball, LLC, 154 Idaho 167, 174, 

296 P3d 373, 380 [2013]; Ouachita Wilderness Inst., Inc. v Mergen, 329 Ark 405, 417, 947 

SW2d 780, 786 [1997]; Auckenthaler v Grundmeyer, 110 Nev 682, 686, 877 P2d 1039, 

1041-1042 [1994]; Blair v Mount Hood Meadows Dev. Corp., 291 Or 293, 297-298, 630 

P2d 827, 829-830 [1981]; Parker v Highland Park, Inc., 565 SW2d 512, 517 [Tex 1978];

Lyons v Redding Const. Co., 83 Wash 2d 86, 95, 515 P2d 821, 826 [1973]; Leavitt v

Gillaspie, 443 P2d 61, 68 [Alaska 1968]; see also Horton v American Tobacco Co., 667 

So 2d 1289, 1293 [Miss 1995] [noting that assumption of risk was “subsumed in 

(Mississippi’s) comparative fault doctrine”]).10 As this list shows, the fear of “potentially 

crushing liability” on school athletics has no basis in reality (Bukowski, 19 NY3d at 358).11

10 Equal access to these opportunities has historically been denied to girls and women but, 

with the passage of Title IX, they now participate in these rewarding activities once 

reserved only for boys and men (see McCormick ex rel. McCormick v School Dist. of

Mamaroneck, 370 F3d 275, 286-288 [2d Cir 2004]). No doubt, we all benefit from this sea 

change in the law and athletics (see Alexa Phillippou, LSU’s Morris, SC’s Beal, Amihere 

Declare for 2023 WNBA Draft, ESPN, Apr. 4, 2023, available at

https://www.espn.com/wnba/story/_/id/36069258/lsu-morris-sc-beal-amihere-declare 

2023-wnba-draft [retrieved Apr. 4, 2023]; Remy Tumin, N.C.A.A. Women’s Tournament 

Shatters Ratings Record in Final, NY Times, Apr. 3, 2023, available at

https://www.nytimes.com/2023/04/03/sports/ncaabasketball/lsu-iowa-womenstournament-ratings-record.html [retrieved Apr. 4, 2023]). 

11 The majority posits a lack of data showing “that states opting to allow for liability in 

similar circumstances have not seen any cuts to scholastic sports budgets or even a chilling 

effect on employment in athletics in decades” as a basis for defending our continued 

upkeep of the implied assumption of risk doctrine (majority op at 5 n 2). This is no response 

to the fact that robust opportunities for professional and recreational sports exist in our 

sister jurisdictions that have adopted comparative fault. Tellingly, the majority points to no 

data confirming the policy concerns repeated throughout our case law. Most importantly, 
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Moreover, under CPLR 1411’s pure comparative fault regime, the trier of fact remains free 

to consider the risks inherent in the sport when assigning damages based on each party’s 

culpable conduct (see CPLR 1411). Thus, liable defendants are not automatically subject 

to 100 percent of the damages suffered.12

Here, plaintiff Grady lost eyesight as a result of an errant baseball thrown toward 

him during a complex, multi-ball drill that included less-experienced junior varsity players. 

the legislative history surrounding CPLR 1411 contains no such data. Indeed, one would 

think that if there were some evidence that pure comparative fault would reduce athletic 

opportunities in New York the Legislature or, at the very least, the authors of the Judicial 

Conference Report would have referenced it if they intended to retain assumption of risk 

in this arena. Instead, the legislative history is silent on the matter. In light of this, I see no 

basis to reaffirm in these appeals what the Court has recently acknowledged is a 

“result-oriented application of a complete bar to recovery” (Trupia, 14 NY3d at 395).

12 The majority’s observations that “decades of applicable precedent” has reaffirmed the 

doctrine and that the Legislature “has never sought to correct” the Court’s purported 

misreading of CPLR 1411 is no basis for the Court to ignore its obligation to interpret the 

law in accordance with applicable rules and principles (majority op at 4, 6). In the past, we 

have not hesitated to correct our mistaken interpretations of statutes when we have found 

“the reasons for adopting what we think the correct interpretation of the statute to be more 

compelling than the reasons for adhering to a mistaken one” (People v Rudolph, 21 NY3d 

497, 502 [2013], overruling People v McGowen, 42 NY2d 905 [1977]; see also id. at n *,

citing Reome, 15 NY3d at 188, overruling People v Hudson, 51 NY2d 233 [1980]; Matter

of Hyde, 15 NY3d 179 [2010], overruling Matter of Dillon, 28 NY2d 597 [1971]; People

v Feingold, 7 NY3d 288 [2006], overruling People v Register, 60 NY2d 270 [1983]; 

Lusenskas v Axelrod, 81 NY2d 300 [1993], overruling Brown v Poritzky, 30 NY2d 289 

[1972]; People v Levy, 15 NY2d 159 [1965], overruling People v Florio, 301 NY 46

[1950]).

Moreover, when, as here, experience teaches us that a policy driving our case law is 

unjustified and the corresponding doctrine we have adopted has proven itself unworkable, 

we have a responsibility to change course, regardless of how much time has passed or 

whether the Legislature has acted.
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Plaintiff Secky was driven into unpadded bleachers, causing an injury to his shoulder that 

required surgery during his participation in a rebounding basketball drill that the coach 

testified featured elimination of some boundary lines and the athletic director described as 

“wall to wall” and “bleacher to bleacher” (i.e., containing no boundary lines).13 In each 

case, I would reverse the Appellate Division’s orders, deny the respective defendants’ 

motions for summary judgment, and remit for trials before fact finders properly-instructed 

on comparative fault.14

III.

New York courts need not continue applying this “limited vestige of the assumption 

of risk doctrine” (Custodi, 20 NY3d at 87). Even if the doctrine was somewhat defensible 

13 Both cases also involve, to differing degrees, classic battles of the experts which, as I 

have previously cautioned, are particularly unfit for summary judgment given that 

questions about each expert’s methods and conclusions go to their weight, a determination 

reserved for the finder of fact (see Nemeth v Brenntag N. Am., 38 NY3d 336, 364-365 

[2022] [Rivera, J., dissenting]).

14 The typical content of such instruction is familiar to both the Bench and Bar. Indeed, the 

New York pattern jury instruction on comparative fault states, in relevant part:

“If . . . you find that the plaintiff . . . was negligent and that (their) negligence 

was a substantial factor in bringing about (the accident, injury, [or other

appropriate characterization of the event]), you must then apportion the fault 

between the plaintiff (decedent) and the defendant [and, where appropriate,

AB, a third person].

“Weighing all the facts and circumstances, you must consider the total fault, 

that is, the fault of both the plaintiff . . . and the defendant . . . and determine 

what percentage of fault is chargeable to each. In your verdict, you will state 

the percentages you find. The total of those percentages must equal one 

hundred percent” (N.Y. Pattern Jury Instr.—Civil 2:36).
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as applied to professional athletes who earn a living assuming risks inherent in a for-profit 

sporting event, the Court has unwisely expanded the reach of the doctrine to student 

athletes and recreational sports participants. In so doing, the Court strayed from the 

foundation of the “primary assumption of risk” rhetoric and tolerated what is, in practice, 

a complete defense to tortious harm. The way out of this unworkable, results-driven morass 

is to completely abolish the doctrine and restore the pure comparative fault regime the 

Legislature intended to establish in 1975 (Taylor, 9 NY3d at 149; Hobson, 39 NY2d at 

489).

The same tools the Court used to create this policy-based judicial protectionism for 

athletics (see Turcotte, 68 NY2d at 437-439) supply us with the means to finally effectuate 

the Legislature’s intent to end contributory negligence and assumption of risk (see

CPLR 1411). The Court has long emphasized that the common law “must be held no 

further abrogated than the clear import of the language used in the statutes absolutely 

requires” (Bertles v Nunan, 92 NY 152 [1883]; McKinney's Cons Laws of NY, Book 1, 

Statutes § 153 [“A change in long established rules of law is not deemed to have been 

intended by the Legislature in the absence of a clear manifestation of such intent”]).

15

15 The Court in Arbegast purported to heed this maxim, observing that the common law 

“distinguished between express and implied assumption of risk” and reasoning that, since 

“[t]he Legislature is presumed to be aware of the decisional and statut[ory] law in existence 

at the time of an enactment” and “[n]either article 14-A nor its legislative history defines 

‘assumption of risk[,]’ ” the Legislature did not abrogate this distinction when it passed 

CPLR 1411 (65 NY2d at 169-170). That conclusion was wrong. Given the Legislature’s 

cognizance of the existing law, had the Legislature intended to retain the distinction 

between express and implied assumption of risk, it would have said so explicitly. Instead, 

the Legislature referred to “assumption of risk” without any qualifiers (CPLR 1411).
- 27 - No. 23 & 24

- 27 -

Section 1411 easily meets this threshold, as its text and history evince a clear, definite 

legislative intent to dispense entirely with the assumption of risk doctrine in favor of pure 

comparative fault (cf. Xiang Fu He, 34 NY3d at 171-172 [statute assigning responsibility 

of clearing icy sidewalks to property owners displaced common-law rule assigning it to the 

City because the statute’s text “could not be clearer”]).

Justice Frankfurter cautioned that “[t]he phrase ‘assumption of risk’ is an excellent 

illustration of the extent to which uncritical use of words bedevils the law” (318 US 54, 68 

[1943]). We need not continue engaging in “deft legal maneuvering” (Matter of Brooke

S.B. v Elizabeth A.C.C., 28 NY3d 1, 26 [2016] [internal quotation marks omitted]) to 

artificially preserve this doctrine. Rather than continue rendering outcome-driven decisions 

based on the remnants of a doctrine the Legislature discarded decades ago, we should, as 

the Legislature intended, abandon the implied assumption of risk doctrine altogether and 

finally allow the trier of fact to apportion liability amongst culpable parties.
- 1 -

SINGAS, J. (dissenting in Grady and concurring in Secky):

The majority accurately articulates the well-settled principles governing these cases 

in section I of its opinion. I note that no party preserved an argument that this Court should 

disregard this jurisprudence, including proffering any explanation for why stare decisis 
- 2 - Nos. 23 & 24

- 2 -

should not apply here (see Bingham v New York City Tr. Auth., 99 NY2d 355, 359 [2003] 

[“in making and shaping the common law—having in mind the doctrine of stare decisis 

and the value of stability in the law—this Court best serves the litigants and the law by 

limiting its review to issues that have first been presented to and carefully considered by” 

the courts below]). The majority also correctly applies our sound law to the facts of Secky

in section II. I join those sections of the opinion. I dissent in part, however, because the 

majority misapplies our precedent to the circumstances presented in Grady in section III.

The plaintiff in Grady was injured when he was hit in the face with a baseball during 

a high school baseball practice. The majority mistakenly concludes that a jury should 

determine whether this harm resulted from “an inherent risk” of baseball (majority op at 

9). A trial is unnecessary, however, because we have repeatedly made clear that being hit 

with a mis-thrown ball while playing baseball is a textbook example of a risk “commonly 

encountered or ‘inherent’ ” in the sport (Bukowski v Clarkson Univ., 19 NY3d 353, 356 

[2012]; see Morgan v State of New York, 90 NY2d 471, 484 [1997]; see also majority op 

at 9 [“Errant balls may be an inherent risk of playing baseball”]). Indeed, as Chief Judge 

Cardozo explained, even baseball spectators assume the risk of being hit by waywardly 

thrown balls (see Murphy v Steeplechase Amusement Co., 250 NY 479, 482 [1929]).

Defendants’ evidence demonstrated that plaintiff “accepted personal responsibility” 

for his injury because it stemmed from an inherent risk of playing baseball—being hit by 

a mis-thrown ball (Morgan, 90 NY2d at 484; see Bukowski, 19 NY3d at 356). Further, 

contrary to the majority’s conclusion, the practice drill was as safe as it appeared. No 

concealed risks existed inasmuch as plaintiff admitted that he thought the drill was unsafe 
- 3 - Nos. 23 & 24

- 3 -

but participated anyway. Also, the drill did not “unreasonably enhance[ ]” the risks to 

plaintiff beyond those players typically encounter (Custodi v Town of Amherst, 20 NY3d 

83, 88 [2012]). The use of multiple balls at a baseball practice is prevalent and inherent to 

such training sessions. Similarly, use of a protective screen is commonplace at baseball 

practices. The protective screen here, measuring seven feet high by seven feet wide, 

certainly was tall and wide enough to provide protection for plaintiff even though it failed 

to stop the ball that caused his injury. As the Appellate Division stated, “plaintiff was an 

experienced baseball player who knew of the risks, appreciated their nature[,] and 

voluntarily assumed them” (190 AD3d 1218, 1220 [3d Dept 2021] [internal quotation 

marks omitted]). Plaintiff failed to raise a triable issue of fact in response to defendants’ 

showing and, thus, the courts below correctly granted defendants summary judgment. 

Plaintiff’s injury resulted from “a luckless accident arising from [his] vigorous 

voluntary participation in competitive interscholastic athletics” (Benitez v New York City 

Bd. of Educ., 73 NY2d 650, 659 [1989]; see Bukowski, 19 NY3d at 358). Despite the 

unfortunate facts of this case, our precedent requires that we affirm the Appellate Division

order. 

My colleagues’ contrary conclusion misapplies (or advocates abandoning) our 

precedent, potentially opening the door to liability for, among others, child athlete coparticipants, along with community centers and religious institutions that host athletic 

programs, volunteer coaches, and other people that spend their time creating opportunities 

for children to participate in athletic and other recreative activities. While owners of 

professional sports facilities like Citi Field, UBS Arena, and Highmark Stadium “can . . . 
- 4 - Nos. 23 & 24

- 4 -

easily afford insurance” (Rivera, J., dissenting op at 18), many youth programs, especially 

those serving disadvantaged children, may not be so fortunate.

For No. 23: 

Order reversed, with costs, and defendants' motion for summary judgment denied.

Opinion by Judge Garcia. Chief Judge Wilson and Judges Cannataro and Troutman 

concur. Judge Rivera concurs in result in an opinion. Judge Singas dissents in an opinion.

Judge Halligan took no part.

For No. 24: 

Order affirmed, with costs. Opinion by Judge Garcia. Chief Judge Wilson and Judges 

Cannataro and Troutman concur, Judge Singas in a concurring opinion. Judge Rivera 

dissents in an opinion. Judge Halligan took no part.

Decided April 27, 2023