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April 2, 2009

Third Department Declines to Follow Second and Fourth Department's Expansion of the Doctrine of Primary Assumption of the Risk

In Trupia v. Lake George Central School District, the Appellate Division, Third Department reversed a decision from the Supreme Court of Warren County that granted the defendants permission to amend their answer to include the affirmative defense of primary assumption of risk following discovery and Plaintiffs' filing of the note of issue. The court determined that while leave to amend a pleading was within the trial court's discretion, the proposed amendment was "devoid of merit."

The Third Department found that the minor plaintiff's act of sliding down a banister of a stairway during a break between classes at summer school was not a "sport or recreational activity" to which the doctrine of primary assumption of the risk would apply. The Third Department recognized that the finding was contrary to recent decisions from the Second and Fourth Departments that have expanded the application of the assumption of risk doctrine beyond sport or recreational activities to include non-athletic activities such as entering a window, teaching a class or jumping off a concrete bench. In straying from these decisions, the Third Department placed emphasis upon the policy behind the doctrine: to "facilitate the free and vigorous participation in athletic activities." The Third Department further noted that the Second and Fourth Department's expansion of the doctrine took an approach more akin to the doctrine of contributory negligence that barred recovery from a defendant due to plaintiff's own negligence, which is no longer available in New York.

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