What Is Assumption of Risk in New York?

Assumption of risk is a legal defense. The other side argues you voluntarily accepted a known danger before you got hurt. In New York, this defense rarely blocks your right to sue entirely. Under CPLR § 1411, it can usually only reduce your compensation in proportion to your share of fault. Outside of sports and recreation, it almost never applies at all. This post explains how the doctrine works, where its limits are, and what a recent 2025 ruling changed.

Say you have been injured, and the insurance company or a defense lawyer tells you that you "assumed the risk." It is worth knowing exactly what that phrase means under New York law. It is not a magic word that ends your case. It is an affirmative defense. That means the other side has to raise it and prove it. New York courts apply it narrowly, with several built-in exceptions that protect injured people.

At The Orlow Firm, we have handled personal injury cases across Queens and New York City for over 40 years. Assumption of risk comes up far more often in conversation than it does as a winning defense. Here is what you need to know.

The Three Types of Assumption of Risk

New York recognizes three distinct versions of assumption of risk. They sound similar, but they lead to very different legal outcomes. Knowing which one a defendant is relying on tells you how much it actually threatens your claim.

Express Assumption of Risk

Express assumption of risk happens when you sign or verbally agree to accept the known risks of an activity. This is the waiver or release form you sign before a boxing class, a CrossFit session, or a turn on a rock-climbing wall. By signing, you are putting in writing that you understand the activity is dangerous and you accept those dangers.

Here is the part most people do not realize. In New York, these waivers are often worth less than the gym thinks. Under General Obligations Law § 5-326, a waiver signed at a recreational facility that charges a fee is void as a matter of public policy when the facility's own negligence caused the harm. A waiver can protect a business from the inherent risks of an activity. But it cannot give a fee-charging gym, rink, or climbing center a free pass for its own carelessness, such as defective equipment or an unsupervised session. So if you were hurt because the facility was negligent, the form you signed may not protect them at all.

Primary (Implied) Assumption of Risk

Primary assumption of risk is the version that genuinely matters in New York. It can still completely bar a claim, but only in a narrow category. It applies to risks that are inherent in and obvious to a sport or recreational activity. By choosing to play, you are deemed to have consented to the ordinary dangers of the game.

Think of a foul ball entering the stands at a Yankees game. Or getting bumped and falling during a pickup basketball game at a Queens park. Or being struck by a mishit golf ball during a round. These are risks built into the activity itself.

The governing rule comes from Morgan v. State of New York, 90 N.Y.2d 471 (1997), a New York Court of Appeals decision. Under Morgan, primary assumption of risk applies only when the risk is genuinely inherent to the activity and the venue or operator has not unreasonably enhanced that risk. This is the one form of the doctrine that survived New York's shift to comparative negligence. Even then, it survived only for athletic and recreational activities.

Secondary (Implied) Assumption of Risk

Secondary assumption of risk is different again. Here, the danger is not inherent to a sport. The injured person simply knew a hazard existed and chose to face it anyway. A restaurant worker who sees a wet floor, knows it is slippery, and walks across it. A delivery worker who notices a broken step but uses the staircase regardless.

In New York, secondary assumption of risk is not a separate complete defense. Courts fold it into comparative negligence under CPLR § 1411. They treat it as a question of how fault should be shared, not as a reason to throw out the case. We will come back to what that means for your recovery below.

When Assumption of Risk Does NOT Apply in New York

This is where the doctrine's reputation outruns the reality. Defense lawyers raise assumption of risk constantly. But New York law contains a long list of situations where it simply does not hold up. Knowing these limits is the difference between accepting that you have no case and recognizing that you may have a strong one.

The risk was unreasonably enhanced. Even in sports, a venue or operator can make an activity more dangerous than it customarily is through negligent design, poor maintenance, or reckless operation. When that happens, it cannot hide behind assumption of risk. The New York Court of Appeals reinforced this in Katleski v. Cazenovia Golf Club, Inc., 2025 NY Slip Op 02178, decided April 15, 2025. The Court confirmed that a plaintiff can defeat the defense by showing the risk that caused the injury exceeded what is normal for the sport. A normal golf-course risk is one thing. A course laid out so that play creates an abnormal hazard is another.

You were not actually participating in the activity. Primary assumption of risk requires active participation. In the companion case decided alongside Katleski — Galante v. Karlis — a woman was injured when the golf cart she was driving in the parking lot was struck by a car. Because she was not yet playing golf, the doctrine gave the defendant no protection. Being physically near a venue is not the same as taking part in the activity.

The activity is not a sport or recreation. After Trupia v. Lake George Central School District, 14 N.Y.3d 392 (2010), a Court of Appeals decision, the doctrine is confined to athletic and recreative activities. The court declined to apply it to a child injured while sliding down a banister. Horseplay is not a sport. Workplace tasks, ordinary slip-and-falls, and general negligence claims fall outside the doctrine entirely.

The risk was hidden or not obvious. You can only assume a risk you actually knew about. The injured person must have appreciated the specific danger that caused the harm, not just had a vague sense that an activity can be dangerous. A broken railing at a sports facility that no one warned about is not an assumed risk.

The defendant was grossly negligent or acted intentionally. No waiver and no assumption of risk defense protects a defendant who acted recklessly or on purpose. These claims survive regardless of any form you signed or any activity you chose to join.

The injured person was a child. New York courts are protective of minors, who are not held to an adult's understanding of risk and consent. A waiver a parent signs on a child's behalf faces extra scrutiny, and a court may find the child could not truly appreciate the danger involved.

Participation was coerced. Voluntariness is a required element. Say you had no real choice. For example, an employer directed you to perform a dangerous task. Then your "acceptance" of the risk was not voluntary, and the defense fails.

This Orlow Firm video on what a property owner is and is not responsible for in a premises case shows how these defenses get tested in practice:

You Assumed Some Risk — Can You Still Sue in New York?

Yes, in most cases. This is the single most important thing for injured New Yorkers to understand. The assumption that "I did something risky, so I have no case" causes people to walk away from valid claims.

New York abandoned the old all-or-nothing rule decades ago. Under CPLR § 1411, enacted in 1975, your own conduct does not bar recovery. That includes assumption of risk in its secondary form. It can only reduce your award in proportion to your share of fault. The statute says a plaintiff's culpable conduct, "including contributory negligence or assumption of risk," does not bar recovery. Instead it diminishes the damages "in the proportion which the culpable conduct attributable to the claimant... bears to the culpable conduct which caused the damages."

In plain terms, New York uses a pure comparative negligence system. If a court finds you 25% responsible for your own injury, you still recover 75% of your damages. On a $100,000 case, that is $75,000, not zero. Even a plaintiff found mostly at fault can still recover a reduced share.

There is one place this percentage rule does not control. That is the narrow sports-and-recreation context governed by primary assumption of risk under Morgan. There, if a risk truly was inherent to the activity, the defendant may owe no duty at all, which can fully bar the claim. But the Katleski decision in 2025 reaffirmed that even that exception comes with real limits. Enhanced risks and non-participants fall outside it.

It is also worth remembering that property owners, employers, and event organizers keep their own independent duty of care. Accepting that an activity carries inherent risks does not relieve them of responsibility for hazards they create or fail to fix. This Orlow Firm video covers how fault-sharing works even when the injured person bears some responsibility:

Common Scenarios: Does Assumption of Risk Apply in NYC?

The doctrine turns on the specific facts. Here are realistic New York situations and how the assumption of risk analysis tends to play out.

A foul ball at Yankee Stadium. Spectators assume the inherent risk of balls entering the stands. That is squarely a primary assumption of risk situation. But say protective netting was negligently installed or maintained and failed. The defense weakens, because the risk was enhanced by negligence rather than inherent to watching baseball.

A fall during a basketball game at a Queens park. Bumps, contact, and falls are inherent to basketball, so an ordinary collision is an assumed risk. A fall caused by a cracked, potholed court surface is not. A dangerous surface is not part of the game, and it points to the venue's negligence.

Signing a waiver at a Manhattan boxing gym. The waiver holds for the inherent risks of a contact sport. But GOL § 5-326 voids it as to the gym's own negligence, such as defective equipment or an unsupervised bout that should have been stopped.

A construction worker told to skip safety gear. Assumption of risk does not apply to workplace injury claims governed by New York's Labor Law. And even if it did, compelled risk-taking is not voluntary. Construction workers are not stripped of their rights because the job is dangerous.

Slipping at a paid ice rink such as Bryant Park or Chelsea Piers. GOL § 5-326 voids any waiver you signed at a fee-charging rink. And if the ice surface had a known defect, the assumption of risk argument is weaker still.

Workplace injuries sit entirely outside the primary assumption of risk doctrine, so construction cases in particular are rarely defeated by it. If your injury happened on a job site, do not let the phrase discourage you.

How NYC Courts Evaluate Assumption of Risk Claims

Courts do not apply assumption of risk automatically. A judge or jury works through several questions before the defense can succeed:

• Did the injured person actually know the specific risk that caused the harm, not just that the activity could be dangerous in general?
• Was participation voluntary, or was the person compelled?
• Was the risk genuinely inherent to the activity, or was it enhanced by someone's negligence?
• Is the activity one the law recognizes under the sports-and-recreation doctrine at all?
• Was the injured person a minor who could not fully appreciate the danger?

Each case is decided on its own facts. Assumption of risk is not a formula a defendant can plug in to make a claim disappear. It is a fact-intensive defense that an experienced attorney can challenge on several fronts. This Orlow Firm video walks through the factors courts weigh in premises cases:

Frequently Asked Questions About Assumption of Risk

Can I sue if I assumed the risk in New York?

In most cases, yes. Under CPLR § 1411, assumption of risk in New York usually reduces your recovery rather than barring it entirely. The exception is primary assumption of risk for inherent risks of a sport or recreational activity. Even there, you can still recover if the risk was unreasonably enhanced or you were not actively participating.

Does signing a waiver mean I can't sue?

Not necessarily. Express assumption of risk waivers cover the inherent risks of an activity. But General Obligations Law § 5-326 voids waivers at fee-charging recreational facilities when the facility's own negligence caused the injury. A signed form does not shield a gym, rink, or climbing center from its own carelessness.

What is the difference between assumption of risk and comparative negligence?

Comparative negligence is the broader system. New York reduces your damages by your percentage of fault rather than barring your claim. Secondary assumption of risk is folded into that fault analysis as one factor. Primary assumption of risk is the exception — in sports and recreation, it can negate the defendant's duty entirely, which is different from just reducing damages.

Does assumption of risk apply to construction accidents?

No. New York's Labor Law governs construction injury claims, and primary assumption of risk does not apply to them. Even setting that aside, a worker directed to perform a dangerous task has not voluntarily assumed the risk. Construction workers generally keep their full right to pursue compensation.

What did the 2025 Court of Appeals say about assumption of risk?

In Katleski v. Cazenovia Golf Club, decided April 15, 2025, the New York Court of Appeals confirmed two limits. First, a plaintiff can defeat the assumption of risk defense by showing the risk was unreasonably enhanced beyond what is normal for the sport. Second, the doctrine does not apply to someone who was not actively participating, as in the companion case of a woman whose golf cart was struck by a car in a golf course parking lot before she began to play.

Does assumption of risk apply to children in New York?

Children are treated differently. A minor is not held to an adult's understanding of danger, so a court may find a child could not truly appreciate or consent to a risk. Waivers a parent signs on a child's behalf also receive heightened scrutiny.

Sources & Official Resources

New York Laws Cited

1. CPLR § 1411 — Damages Recoverable When Contributory Negligence or Assumption of Risk Is Established
2. General Obligations Law § 5-326 — Agreements Exempting Pools, Gymnasiums, Places of Public Amusement or Recreation and Similar Establishments from Liability for Negligence Void and Unenforceable

Court Decisions Cited 3. Morgan v. State of New York, 90 N.Y.2d 471 (1997) — Court of Appeals, Primary Assumption of Risk in Sports 4. Trupia v. Lake George Central School District, 14 N.Y.3d 392 (2010) — Court of Appeals, Assumption of Risk Confined to Athletic/Recreative Activities 5. Katleski v. Cazenovia Golf Club, Inc., 2025 NY Slip Op 02178 (April 15, 2025) — Court of Appeals, Enhanced Risk and Non-Participation Limits

Helpful Resources 6. NY Courts — Supreme Court Civil Term

This article provides general information about New York law and is not legal advice. Assumption of risk varies significantly from state to state, and every case turns on its own facts. Contact an attorney to discuss your specific situation.

Contact The Orlow Firm

If someone is telling you that you assumed the risk of your injury, do not take that at face value. New York law contains real protections for injured people, and the assumption of risk defense has clear limits that an experienced attorney can challenge. Those limits include the narrow scope of the sports-and-recreation doctrine and the statutes that void waivers and preserve your right to recover under comparative negligence.

The Orlow Firm has helped injured people throughout Queens and all five New York City boroughs for over 40 years. We can review what happened, explain whether the defense actually applies to your situation, and tell you where you stand.

Call (646) 647-3398 for a free consultation. We work on contingency. You pay nothing unless we win.

Se Habla Español.