Neighbors' Attempt to Make Rollerblading on Their Dangerous Property “At Your Own Risk” Fails By on November 24, 2012

In Custodi v. Town of Amherst, 2012 WL 5305789 (October 30, 2012), the plaintiff broke her hip when she tripped and fell while rollerblading in her residential neighborhood.   She fell as she attempted to rollerblade from the sidewalk into the street when one of her skates allegedly struck a two-inch height differential where the edge of defendants' driveway met a drainage culvert that ran the length of the street.  The Court of Appeals rejected the defendants’ motion to dismiss the lawsuit by contending that plaintiff necessarily assumed the inherent risk of a fall by choosing to rollerblade on their property with an awareness that a skater using the neighborhood's residential driveways and sidewalks could encounter bumps or height differentials.  

The court agreed with the plaintiff that the assumption of the risk doctrine is not applicable to her trip and fall accident since she was not engaged in a sporting competition or an athletic or recreative activity at a designated venue. The court held that this case is governed by ordinary premises liability principles and that the defendants’ duty of care as landowners was not negated by plaintiff’s voluntarily engagement in recreational rollerblading. 

The Court of Appeals concluded that application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.

The court reasoned that if assumption of the risk applied to rollerbladers skating around a neighborhood so too could it apply to other non-pedestrians who sustain injuries, such as joggers, runners and bicyclists.

The assumption of the risk doctrine absolves a property owner of their duty to maintain their premises in reasonably safe condition.  The justification for this absolution from liability is to facilitate free and vigorous participation in athletic activities and to foster these socially beneficial activities by shielding co-participants, activity sponsors or venue owners from “potentially crushing liability”.

Assumption of risk has been used to dismiss cases involving participation in bobsledding, martial arts classes, collegiate baseball, high school football, recreational basketball on an outdoor court, professional horse racing, speed skating on an enclosed ice rink, and a round of golf at a golf course.  In contrast, the Court of Appeals recently declined to apply the assumption of the risk doctrine to what the court characterized as “horseplay” - a child who was injured while sliding down a bannister at school. Trupia v. Lake George Central School District, 14 N.Y.3d 392 (2010).

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