Assumption of the risk not in play.

Plaintiff was an experienced lifeguard who enrolled in a recertification CPR course which included lectures and demonstrations of CPR and rescue breathing techniques. Plaintiff alleges that, during the class, he was used to demonstrate the "head-tilt, chin-lift" technique, which is a method of clearing an unconscious person's airway. Plaintiff claims that demonstration was done in a negligent and reckless manner, thereby causing injury to his neck.

Defendants moved to dismiss, arguing, among other things, that plaintiff assumed the risk of injury by participating in the class. The Second Department denied defendant's motion and reinstated the complaint, in Schoenlank v. Yonkers YMCA, which was decided on October 23, 2007.

The court noted that the doctrine of primary assumption of risk precludes a voluntary participant in a sport or recreational activity from recovering for those injuries that may foreseeably result from the realization of a risk inherent in the activity itself. The doctrine can also apply in the context of nonsporting activities which pose inherent risks to the participants, as long as participation was voluntary and the injured participant had been fully apprised of the risks involved.

The court said that, here, defendants failed to establish, prima facie, that the "head-tilt, chin-lift" technique, when properly done, involved any inherent risk of injury to the person on whom it is performed, and that, therefore, they failed to establish that the doctrine of primary assumption of risk was even implicated.

The court that, in any event, even if plaintiff had assumed some degree of risk by allowing the technique to be performed on him, the law is clear that a participant does not assume the risk of another participant's negligent act which enhances the risk of injury. On these facts, the court found unresolved issues of fact as to whether the alleged application of forceful and excessive pressure and torque to the plaintiff's head and neck for a period of approximately 20 seconds was negligent and enhanced the risk of injury to plaintiff.