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May 4, 2023

Assumption of Risk and Enhanced Dangers: Issue of Fact Causes Third Department to Reverse Lower Court's Decision in Demolition Derby Case

In Cody C. Waite v. County of Clinton, New York, et al., the Appellate Division, Third Department recently addressed whether a summary judgment motion in favor of the defendants was appropriately granted based on the plaintiff’s assumption of risk. 

The plaintiff was attending a demolition derby held at the Clinton County Fair. He was seated in the inner part of the track known as “the pit.” In order to purchase a ticket to sit in the pit, he was required to sign a release and waiver agreement.

During the final event of the day, a vehicle pushed through the perimeter of concrete barriers and entered the spectator area of the pit. The plaintiff was pushed backwards by the vehicle and his ankle became caught between the vehicle and the nearby bleachers, resulting in serious injury. He filed suit alleging that he sustained injuries due to the defendants’ negligent placement of the concrete barriers.  

The defendants moved for summary judgment, asserting that the plaintiff assumed the risk of his injury. The plaintiff opposed, arguing that he had not assumed the risk of injury and submitted an expert affidavit in support of his motion. The New York State Supreme Court for Clinton County granted the motion, finding that the plaintiff understood the risks of observing the demolition derby.  

The Third Department reversed the supreme court’s grant of summary judgment. The court first noted that the defendants established the plaintiff was aware of the risks associated with observing a demolition derby and therefore assumed the risk of his injuries.  

However, the court stated that it must also consider whether the plaintiff demonstrated that the defendants unreasonably enhanced the danger of the activity. The plaintiff argued that he was not warned that there was a risk that vehicles could break through the concrete barriers, and his expert found that the lack of interconnecting braces between the concrete barriers created a weak configuration that was not up to the standard of the demolition derby industry.  

Noting the expert’s opinion, the Third Department found that the plaintiff raised an issue of fact as to whether the barrier design and configuration unreasonably increased the risk that he would suffer an injury.  

The Third Department’s decision is consistent with existing case law relating to the assumption of risk. Generally, a plaintiff cannot recover for injuries when a risk is knowingly assumed, but evidence of an enhanced danger created by a defendant may rebut the principle. Where there is evidence put forth by a plaintiff of enhanced dangers caused by a defendant, courts are likely to find an issue of fact exists, precluding summary judgment under the assumption of risk doctrine.  

If you have any questions regarding the content of this alert, please contact Hayden Fahrenkopf, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.


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