Practice point: The doctrine is not a defense based on a
plaintiff's culpable conduct, but, instead, is a measure of the
defendant's duty of care to participants in certain types of athletic or
recreational activities. Under the theory, a plaintiff who freely accepts a
known risk commensurately negates any duty on the part of the defendant
to safeguard him or her from the risk.
Student note: Because determining the existence and scope of a duty of care
requires an examination of plaintiff's reasonable expectations of the
care owed by others, the plaintiff's consent does not
merely furnish the defendant with a defense; it effectively eliminates the duty of
care that otherwise would exist.
Case: Braile v. Patchogue Medford School Dist. of Town of Brookhaven, NY Slip Op 08949 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Law office failure and a motion to vacate a default.
