Practice point: The Appellate Division reversed the granting of the motion to dismiss, noting that if plaintiff had merely lost his grip and fallen off the seat while riding the zip line, he would be barred from recovery because that is an inherent risk of zip-lining. However, plaintiff's claim is not that he fell victim to such a common hazard. Rather, it is that the zip line was negligently constructed by defendant and that he had no way of knowing that. A person cannot be said to have assumed the risk of being injured by faulty equipment when he was unaware that the equipment was faulty.
Student note: A participant in an athletic or recreational activity assumes known risks and relieves a defendant of any duty to safeguard him or her from those risks. However, a participant only consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Whether a plaintiff was aware of the risk is key to determining if he or she assumed it, and this can only be assessed against the background of the skill and experience of the particular plaintiff. In addition, sporting participants will not be deemed to have assumed concealed or unreasonably increased risks.
Case: Zelkowitz v. Country Group, Inc., NY Slip Op 05732 (1st Dep't August 4, 2016)
Here is the decision.
Tomorrow's issue: A chain collision accident.
