For its February Session, the New York Court of Appeals will hear oral arguments in Trupia v. Lake George Central School Dist.  The appeal concerns whether the Court should extend primary assumption of risk beyond the context of sporting and entertainment activities.

 The injured infant in Trupia attempted to slide down his school's bannister and fell on his head, fracturing his skull and sustaining a brain injury and retrograde amnesia.  The infant and his father commenced an action against the school.  After discovery and the filing of the note of issue, the defendant school moved to amend its answer to assert the affirmative defense of primary assumption of risk.  

Primary assumption of risk acts as a total bar to liability based on the defendant's alleged negligence.  Since the enactment of the comparative fault statute, primary assumption of risk has typically only applied in cases where the plaintiff was involved in a sporting or entertainment activity.

The Appellate Division, Third Department reversed the trial court's grant of the defendant's motion to amend its answer.  The Court concluded that the defense was devoid of merit because primary assumption of risk did not apply to the injured infant's activity.  The court rejected the defendant's argument that the Second Department and Fourth Department had extended primary assumption of risk beyond the sporting activity and entertainment activity context (Sy v. Kopet (the plaintiff injured while attempting to enter room through second floor window) and Lamandia-Cochi v. Tulloch (the plaintiff was injured while attempting to slide down wooden bannister).

The Court will resolve this conflict between the Appellate Division Departments and clarify the assumption of risk that frequently eludes attorneys.

New York Civil Law will keep you apprised of the developments on this appeal.