Child Hurt Skating on a Neighbor’s Driveway: Who Pays?

My daughter was riding on her skates with her friend at the friend’s house. My daughter hit a broken patch of sidewalk at the edge of their friend’s driveway, and was thrown to the ground. She broke her arm badly and needed surgery. The friend’s family said to me that my daughter chose to skate, and skating is risky, so her injuries are her own fault. Is this true?

This argument is called “assumption of risk” and is not true in your daughter’s case.

Three different doctrines wearing one name

New York law actually recognizes three distinct ideas that all travel under the “assumption of risk” banner. They are not interchangeable, and conflating them is a common source of error.

Express Assumption

Express assumption of risk is a true bar, but a narrow one. It requires an actual agreement, made in advance, that the plaintiff accepts the risk of a particular activity. Arbegast v. Board of Educ. of South New Berlin Cent. School, 65 NY2d 161 (1985). In Arbegast, the plaintiff was expressly told she was riding a donkey at her own peril; despite that advance warning, she chose to proceed anyway and was thrown off the animal and injured. That express admission on the plaintiff’s part defeated her claim. Absent that kind of agreement or pre-occurrence warning, the assumption of risk will not bar recovery. The assumption of risk is only used by a jury to determine the plaintiff’s culpability for the accident.

Primary Assumption

Primary assumption of risk  could be a complete defense — and it is the one defendants overuse. It is not really about the plaintiff’s fault at all. It is a statement about the defendant’s duty. When someone voluntarily participates in a sport or recreational activity, the law says the defendant’s duty is limited to making the conditions as safe as they appear to be.

The participant is deemed to have consented to the risks that are inherent in the activity, and that consent is “a measure of the defendant’s duty of care,” not an absolute defense. Turcotte v. Fell, 68 NY2d 432 (1986). (Ronnie Turcotte was the jockey that rode “Secretariat” to the triple crown in 1973.) Turcotte was injured during a race and rendered a quadriplegic. He sued another rider and the racetrack. The Court dismissed his claims because the other rider engaged in conduct that occurs in professional racing. The track was exonerated because Turcotte was a seasoned professional. He had an opportunity to view the track. Since there were no hidden defects on the track, the race track had no duty to Turcotte.

Implied Assumption

Implied assumption of risk is no longer a complete defense at all. After the Legislature adopted comparative negligence in 1975 (CPLR Article 14-A), a plaintiff’s voluntary encounter with a known danger no longer bars recovery — it merely reduces damages in proportion to the plaintiff’s own fault. CPLR 1411 says exactly that: culpable conduct, including a negligent failure to appreciate a known danger, “operates only to diminish” recoverable damages. Arbegast v. Board of Educ. of South New Berlin Cent. School, 65 NY2d 161 (1985), explains the shift. So when a defendant says the plaintiff “assumed the risk” in the everyday sense, the most that argument can do is apportion fault to the injured party — it cannot end the case.

Why the distinction matters: the purpose of the surviving doctrine

Primary assumption of risk exists for one policy reason: to encourage free and vigorous participation in athletic and recreational pursuits. It does this by shielding co-participants, activity sponsors, and venue owners from ruinous liability. A skier accepts the moguls; a baseball player accepts the line drive; a hockey player accepts the puck. If every such injury produced a lawsuit, the sports would not survive.

But the Court of Appeals has repeatedly warned that this is a “highly artificial construct” that “does not, and cannot, sit comfortably with comparative causation.” Trupia v. Lake George Central School, 14 NY3d 392 (2010). Because it is artificial, the courts have worked hard to keep it in its lane. As a general rule, the doctrine applies to claims arising from sporting events, sponsored athletic activities, or recreational pursuits at designated venues. Custodi v. Amherst, 20 NY3d 83 (2012).

The case on point: ordinary movement is not a “sport”

This is where the driveway injury comes in. In Custodi v. Amherst, 20 NY3d 83 (2012), a woman rollerblading in a non-competitive setting tripped and fell near the defendant’s driveway because of a dangerous premises condition. The defendant argued primary assumption of risk — she chose to rollerblade, after all. However, the Court of Appeals rejected it. The plaintiff was not skating in a venue designated for that purpose, was not in a competition, and was not participating in a sponsored activity. Extending the doctrine to someone simply moving across streets and sidewalks, the Court explained, would create an unwarranted erosion of the general duty of landowners to maintain their property in a reasonably safe condition.

The Court emphasized in dictum: sidewalk defects and dangerous premises conditions are not inherent risks assumed by joggers or runners who are injured while traversing sidewalks and streets. Custodi, supra.

That is precisely the situation of a child injured by a defective driveway. She was not engaged in a designated, sponsored, or competitive sporting activity. Instead, she was moving through her own neighborhood. The hazard was not an inherent feature of skating — it was a dangerous condition of someone else’s property. For this reason, the landowner’s ordinary duty of reasonable care applies.

The Second Department has consistently declined to apply the doctrine to ordinary, non-competitive riders injured by defects in paved public pathways and roads. Vestal v. County of Suffolk, 7 AD3d 613 (2d Dept 2004); Cotty v. Town of Southampton, 64 AD3d 251 (2d Dept 2009). As Cotty put it, riding a bicycle on a paved public roadway for non-competitive purposes normally is not a “sporting activity” at all. The doctrine does not relieve municipalities or landowners of their duty to maintain safe premises. 

The takeaway

The defense “you assumed the risk by choosing a risky activity” sounds intuitive, but it misstates the law in three ways. It ignores that implied assumption of risk only reduces damages and cannot end a case. Additionally, it assumes an express agreement that does not exist. And it stretches primary assumption of risk far beyond its purpose — a doctrine built to protect sports, not to immunize landowners who let their property fall into disrepair.

A child injured by a cracked driveway has not consented to anything. The property owner’s duty to keep the premises reasonably safe remains exactly what it always was. Your daughter will have a claim against the homeowner. The homeowner’s insurance policy will cover the claim.

By James Santner, Esq.

If you or your child has been injured by a dangerous condition on someone else’s property, contact Minchew & Santner, LLP for a free consultation.