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What is primary assumption of risk?

Recently, a Long Island school district failed to convince an appellate court to dismiss a personal injury suit stemming from a minor's midnight tumble down a school stairway while he was playing with friends, unaccompanied by school officials, on school grounds.

According to case reports, the young plaintiff and his friends were engaged in a late-night game, similar to hide and seek, at Old Mill Road School in North Merrick when he tripped on an elevated platform and tumbled down a stairway leading to the high school's basement. The plaintiff sued the district, claiming that the area where he fell was pitch dark, effectively making him unable to see the platform or the stairs.

Denying liability, the school district moved for summary judgment, which would have effectively ended the plaintiff's claim against it. (In law, a summary judgment is a judgment issued by a court for one party and against another party without a full trial. Such a judgment may be issued on the entirety of the case, or just on a few particular issues in the case.)

However, the Nassau County Supreme Court denied the school district's bid. Essentially, the Nassau County Supreme Court determined that the case should continue because the school district failed to prove that it did not owe some type of responsibility for the unaccompanied minor plaintiff who was injured on its premises. The Nassau County Supreme Court's reasoning was based on the doctrine of primary assumption of risk.

What is primary assumption of risk? Primary assumption of risk is a common defense in personal injury claims. Essentially, primary assumption of risk stands for the proposition that a defendant is not responsible for injury to the plaintiff because the defendant either did not owe a duty of care to the injured party or did not breach any duty owed. Primary assumption of risk has the effect of preventing or weakening a plaintiff's right to recovery against a defendant, if the defendant can prove that the plaintiff voluntarily and knowingly assumed the risk at issue.

In the past decisions, New York courts have stated that the doctrine of primary assumption of risk is most applicable as a defense in situations like sports participation. In general, however, a court will look to the nature of the activity which prompted the injury, as well as the relationship between the victim and the defendant when determining what duty, if any, is owed. Indeed, courts have stated that the primary assumption of risk doctrine is not a valid defense in 'horseplay' situations, which might help explain the aforementioned appellate court's denial of the school district's bid for summary judgment.

If you or a loved one has been injured, you may be entitled to damages for the injuries sustained, lost wages, pain and suffering, and much more. To learn more about the legality of your personal injury claim, contact the skilled New York personal injury lawyers at Sakkas, Cahn & Weiss, LLP. They will provide you with the quality representation that you deserve. For a free initial consultation, please call (212) 571-7171, or contact Sakkas, Cahn & Weiss, LLP online today.

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