The doctrine of assumption of the risk has been divided into several categories but as the term applies to sporting events it involves what commentators call "primary" assumption of risk. Defendant's duty under such circumstances is 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. Plaintiff's "consent" is not constructive consent; it is actual consent implied from the act of the electing to participate in the activity. When thus analyzed and applied, assumption of risk is not an absolute defense but a measure of the defendant's duty of care and thus survives the enactment of the comparative fault statute.
In a negligence action, plaintiffs, a jockey and his wife, sued defendants, who were a coparticipant and his employer and the owner and operator of the sports facility. Plaintiff claimed that defendants were liable for injuries plaintiff jockey sustained in race under the theories of common law negligence and violations of the rules of the New York Racing and Wagering Board regulating "foul riding" as to defendant coparticipant, respondeat superior as to employer, and negligent maintenance of racetrack as to the owner. The lower court granted the motion for summary judgment filed by coparticipant and employer, and denied the one submitted by defendant owner. The appelate court affirmed the grant of summary judgment to coparticipant and employer and reversed the denial of summary judgment for owner.
Should a coparticipant, his employer, and the owner of a racetrack be held liable for injuries sustained by a jockey while participating in a horserace?
By participating in the race, plaintiff jockey consented that the duty of care owed him by defendants coparticipant and employer was no more than a duty to avoid reckless or intentionally harmful conduct. The alleged violation did not constitute reckless or intentional conduct, and defendant owner did not violate the duty to exercise reasonable care under the circumstances.