The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities.
While attending a summer program administered by defendant school district on its premises, plaintiff infant rode and ultimately fell from a bannister, injuring himself seriously. Plaintiff's complaint sought to recover principally upon a theory of negligent supervision. Defendant filed an answer. Eventually, Defendant filed a motion for leave to amend its answer, proposing dismissal of the case on the ground of plaintiff’s assumption of risk. The trial court granted the motion. The appellate court reversed that decision. On further appeal, the court affirmed the appellate court’s decision.
Did the appellate court err in reversing the order granting defendant school district’s motion for leave to amend its answer to include the affirmative defense of primary assumption of risk?
The injury-producing activity at issue did not recommend itself as worthy of protection. There was no connection between plaintiff's activity and defendant's auspices, except perhaps negligence. In short, it was not a case in which defendant solely by reason of having sponsored or otherwise supported some risk-laden, but socially valuable voluntary activity, was called to account in damages. If plaintiff's harm was attributable in some measure to his own conduct, and not to negligence on defendant's part, it would be appropriately taken account of within a comparative fault allocation under CPLR 1411; it was not a predicate upon which an assumption of risk should be permitted to apply.