What Is Assumption of Risk and How Does It Affect Your Ability to Sue?

What Does "Assumption of Risk" Mean in New York Personal Injury Cases?

"Assumption of Risk": An Overview

How Can Assumption of Risk Impact Your Right to Sue in NYC?

• It could limit how much money you receive – If the court decides you accepted known risks, they might reduce your compensation. This is common in cases involving sports injuries or recreational activities like skiing or biking in public parks.
• It might prevent you from suing at all – In some situations, if you clearly knew the danger and still went ahead, you may not be able to bring a lawsuit. For example, if you sign a waiver or agreement before joining a risky activity, it may hurt your ability to sue later.
• You may still sue if the risk wasn’t clear or was increased by someone else – If the danger wasn’t obvious or was made worse by another person’s carelessness, assumption of risk may not apply. For example, if a sports facility didn’t properly maintain equipment, you could still have a valid claim.

What Are the Different Types of Assumption of Risk in New York?

• Express Assumption of Risk: This happens when a person clearly agrees to take on a known risk. It’s often written down in a waiver or signed form. For example, if you sign a waiver before going skydiving, you may be agreeing not to sue if you’re injured during the jump.
• Implied Primary Assumption of Risk: In these cases, the person joins in an activity where the risks are obvious and understood. This often applies to sports and recreation. For instance, someone playing in a basketball game in a NYC park understands they might get bumped or fall.
• Implied Secondary Assumption of Risk: This occurs when someone knows there's a danger, chooses to face it anyway, and gets hurt. Unlike primary assumption, the danger isn't built into the activity itself. For instance, if a worker sees a wet floor in a restaurant kitchen but walks over it anyway and slips, this may be considered secondary assumption of risk.

When Does Assumption of Risk Not Apply in NYC Injury Lawsuits?

• You didn’t fully understand the risks: If the danger wasn't clearly explained or wasn’t obvious, you may not have legally assumed the risk. A person must know about the specific risk and accept it willingly for this defense to apply.
• The risk was hidden or unusual: If a risk is unexpected or more dangerous than what a normal person would expect, the assumption of risk may not apply. For example, if a sports facility had a broken railing no one warned you about, you may still have a case if you got hurt.
• The other party acted recklessly: In New York, even if you took on some risk, you may still sue if the other person acted with extreme carelessness or disregard for your safety. This is known as "gross negligence."
• You were required to take part: If you had no real choice—like doing a dangerous task for work—courts may say you didn’t truly agree to take the risk. Voluntary choice is important in these cases.
• The law limits the defense: In some cases, the law does not allow people or businesses to avoid legal responsibility just by having someone sign a waiver. For example, landlords, employers, and schools cannot avoid all legal duties using assumption of risk.

How Do NYC Courts Decide If You Assumed the Risk?

• Did you know about the risk? The court will ask if you were aware of the specific danger before the incident. General knowledge isn’t enough. You must have known about the exact risk that led to your injury.
• Did you choose to take the risk anyway? Even if you knew about the danger, the court wants to know if you voluntarily accepted it. For example, did you agree to play a rough sport or walk into a clear hazard?
• Was the risk obvious and expected? Some risks are so common that anyone would understand them. For example, slipping on a freshly waxed gym floor may be seen as an obvious danger if there were warning signs posted.
• Was the risk part of the activity? Courts consider whether the danger is a regular part of what you were doing. For example, in some sports, getting hit by a ball is a normal risk of the game. But unexpected hazards that go beyond the usual risks, like broken equipment, might not count.
• Were you forced into the situation? If someone had no real choice, such as being told to take a shortcut through a dangerous area for work, the court may find that assumption of risk does not apply.

Can You Still Get Compensation If You Assumed Some Risk?

• You knowingly took on some risk: For example, you go ice skating and know you might fall. If you slip on a clean, well-maintained rink, you likely won't win a lawsuit.
• The other party was still careless: If the rink had a large hole and no warning signs, and you fell because of that, the owner could still be held partly responsible.

1. The court looks at all the facts.
2. They decide if you accepted the normal risks of the activity.
3. They figure out whether someone else—like a property owner—was also careless.

• Just because you knew something was risky doesn’t mean the other person is free from blame.
• Property owners, employers, or drivers still have a duty to act with care.
• You may still be able to hold them legally responsible for their share of the harm.

What Are Common Examples of Assumption of Risk in New York?

• Sports Injuries: If you join a basketball game at a NYC park and twist your ankle, you may have accepted the normal risks of contact sports. Getting hurt in the usual course of play—like slipping or colliding with another player—might not lead to a valid lawsuit.
• Amusement Parks and Rides: Riding a roller coaster at Coney Island involves some risk of sudden drops or jerky motions. If those risks are clearly known and expected, you may not be able to sue for injuries from that kind of movement.
• Recreational Activities: Activities like skiing in nearby resorts or ice-skating at Bryant Park can involve falls or bumps. If you understand and accept those risks, it may limit your ability to sue for related injuries.
• Dangerous Workplaces or Tasks: In some cases, workers who knowingly take on dangerous job duties—like using heavy equipment without safety gear—may be seen as assuming those risks. However, employers still have legal duties to keep workplaces safe.
• Injuries at Sporting Events: Spectators at games—like a Yankees or Mets game—might not be able to sue if they’re hit by a foul ball, since this is a known risk of attending a baseball game.

Why Is Legal Help Important in Assumption of Risk Cases?

• Explaining your rights – A lawyer can tell you if assumption of risk applies to your specific situation and what it means for your case.
• Challenging unfair claims – Sometimes, the person or company that caused the harm will wrongly say you knew the risk. Your lawyer can gather evidence to dispute this.
• Looking for exceptions – In New York, assumption of risk doesn’t apply to every case. Lawyers know when the law makes exceptions, like for things that were more dangerous than expected.
• Showing the other side was still negligent – Even if you knew some risks, you might still sue if the other party acted carelessly or failed to protect you.
• Negotiating with insurance companies – Insurance companies often try to deny or lower your claim using assumption of risk. A lawyer can handle these talks and fight for fair payment.
• Filing your case on time – New York has strict time limits for injury lawsuits. Legal help makes sure all paperwork is filed correctly and on time.

Frequently Asked Questions About Assumption of Risk in NYC

• What does 'assumption of risk' mean? In simple terms, it means you knowingly accepted the chance of getting hurt. If you choose to take part in an activity that has clear risks—like playing sports or riding a rollercoaster—you may have “assumed the risk.”
• Can I still sue if I knew there was some risk? Possibly. Just because you accepted some risk doesn't mean you gave up all your legal rights. If someone else's carelessness (called negligence) made things worse or created extra danger, you might still have a case.
• What are some examples of assumption of risk in NYC? Common examples in New York City include injuries from:
  • Attending a baseball game and getting hit by a foul ball
  • Using a city skate park with obvious posted warnings
  • Joining a boxing class where physical contact is expected
• What if I signed a waiver? A waiver can make it harder to sue, but not always impossible. NYC courts may still allow a lawsuit if the waiver was unclear or if serious negligence occurred. Each situation is different, so it's best to have a lawyer review your case.
• Does assumption of risk apply to all kinds of personal injury cases? No. It usually applies to cases where dangers are obvious or expected. It does not excuse gross negligence or unsafe conditions in places like schools, jobs, or public spaces.
• Can children be assumed to understand and accept risks? Often, no. Courts are more protective of minors. In many cases, children are not seen as able to fully understand what risks they’re taking. This may allow them—or their parents—to still sue even if some risk was present.
• Will assumption of risk mean I get less money if I win? It could. New York follows a rule called “comparative negligence,” which means fault is shared. If the court decides you partly accepted risk, they may reduce your compensation by a certain percentage.
• How will the court decide if I assumed the risk? The court looks at several things, including:
  • Whether the risk was clear and obvious
  • If you knew about the risk ahead of time
  • Whether you chose to go ahead anyway
  • If someone else created added danger you didn’t expect
• Should I talk to a lawyer even if assumption of risk is involved? Yes. These cases can be tricky. Every detail matters, especially in New York City. A lawyer can look at your situation and help you understand your options.

Sources

• CPLR Section 1411 -- Comparative Negligence (NY Senate)
• GOL Section 5-326 -- Recreational Facility Waiver Limitations (NY Senate)
• Assumption of Risk -- Legal Information Institute (Cornell Law)
• Morgan v. State of New York, 90 N.Y.2d 471 (1997) -- Justia
• Trupia v. Lake George Central School District, 14 N.Y.3d 392 (2010) -- Justia

Contact The Orlow Firm for a Free Consultation on Your NYC Injury Case

• Explain how assumption of risk works in New York personal injury law using plain language.
• Review the details of your accident to see if the defense might apply or can be challenged.
• Identify possible sources of compensation , even if you accepted some level of risk.
• Help you understand your rights and whether you still have a strong claim.