Robin Custodi v Town of Amherst & Ors (2012) H&FLR 2014-18

New York Court of Appeals

30 October 2012

Coram: Lippman CJ, Ciparick, Read, Smith, Pigott, Jones and Graffeo JJ

Appearing for the Appellant: Joel B Schechter (of Bennett, Schechter, Arcuri & Will LLP)

Appearing for the Respondent: Robert J Maranto

Catchwords: New York – rollerblading – residential street – fall – assumption of risk – duty of care – athletic or recreational activities

Facts: In July 2007 Robin Custodi (respondent) was injured while rollerblading in a residential street when she hit a two inch height differential where the driveway belonging to one Muffoletto (appellant) met a drainage culvert, causing her to fall. 

The respondent commenced proceedings in negligence against the defendant.  The appellant sought summary judgment from the Supreme Court which was granted on the basis of the respondent’s voluntary assumption of risk*.  On appeal, the Appellate Division found that the doctrine of primary assumption of risk did not apply and that there was a triable issue of fact with regard to proximate cause**.  The appellants appealed to the Court of Appeals.

Held: Per curiam, dismissing the appeal –

1. The principle of “primary assumption of risk” means that a plaintiff who freely accepts a known risk commensurately negates any duty of a defendant to protect them from that risk.  This principle applies when a consenting participant in a relevant activity is aware of an understand the risks and voluntarily assumes them.  The risks must be known, apparent or reasonably foreseeable to the plaintiff.

Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), followed.

2. Where a plaintiff has made a primary assumption of risk, the defendant’s duty is to make the conditions as safe as they appear to be.

Turcotte v Fell, 68 NY.2d 432 (1986), followed.

3. A plaintiff does not assume risks which are concealed, unreasonable enhanced, or caused by reckless or intentional conduct of other people.

Morgan v State of New York, 90 NY.2d 471 (1997), followed

4. The principle of primary assumption of risk is in general limited to particular athletic and recreational activities on the grounds that while they involve increased risks, they have significant social value and it is appropriate to shield coparticipants, sponsors and venue providers from liability.  The appellants were not providers of a means of a means of athletic or recreational activities and so this case was not appropriate for the application of the principle.  Further, it would be an excessive expansion of the doctrine to treat sidewalk defects or dangerous premises as inherent risks assumed by joggers, runners, cyclists and rollerbladers.

Ashbourne v City of New York, 82 NY.3d 461 (2011), Cotty v Town of Southampton, 64 AD.3d 251 (2009), Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), considered.


The Court’s judgment is available here.


*   Custodi v Town of Amherst (Supreme Court of New York, Feroleto J, 24 February 2010, unreported).

**  Custodi v Town of Amherst, 81 AD.3d 1344 (2011)

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