Free Initial Consultation 212-858-0503

Tap Here To Call Us

Recreational Injuries And Assumption Of Risk In New York


One of the most common question that comes up in New York sporting accident cases is whether a defendant can be held liable for a dangerous condition or other negligence in a sporting activity or was the injury caused by a danger that is inherent in the game. Under New York law, there is a duty to exercise reasonable care which requires owner sand operators of recreational areas, to protect the public from foreseeable risks of harm. But the law in New York is equally clear and observes the maxim that landowners ,are not insurer of the safety of those using their property for recreational purposes, and the mere happening of an accident does not render a landowner liable.

The first concept that often comes up in sporting or recreational activity injuries is the assumption of risk doctrine. Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity. In other words, tisks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation, like physical contact in football or being hit by a ball in baseball. In these cases there is no obligation to warn of hazards associated with activities, which are obvious. When a person assumes the risk of participating in a sporting event, the landowner is relieved of legal duty to the participants; and cannot be charged with negligence. As long as the other person’s conduct does not unreasonably increase the risks assumed by the plaintiff, the landowner will be shielded by the doctrine of primary assumption of risk. The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport. In other words, If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine of assumption of risk applies.

But this doctrine does have limits. The Courts have held that it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities. In one case the Court held that the plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, ” ‘cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because they participated in the activity of bicycling In another case the Court held that the assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders”

These decisions recognize that riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road bicycle riding, have been classified as sporting activity. In other cases, the Courts have held that merely by riding a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff does not consents to the negligent maintenance of such roadways by a municipality or a contractor. Our New York bicycle accident lawyers have continued to fight for those who are injured in recreational activities because of another’s negligence.


The deaths of two pedestrians in Central Park over the past few months, both hit by bicyclists, has cast a dark shadow over one of the most popular recreational roads in the world. Our New York City bicycle accident lawyers have handled numerous cases of bicyclists injured in car and truck accidents,

On September 18, 2014 a married mother of two was fatally struck by a 31-year-old Jason Marshall, a bicyclist, apparently traveling in excess of the 25 mph speed limit in Central Park. When Marshall swerved to avoid a group of pedestrians, he allegedly screamed “Get out of the way!” before colliding with Jill Tarlov, 59, the victim. Shortly after arriving at New York Presbyterian Hospital/Cornell Medical Center, doctors pronounced Ms. Tarlov brain dead. Three days later she died. Mr. Marshall, admitted during questioning that he was in the car lane, not the bike lane, when he struck Ms. Tarlov, although it is unclear who had the right of way at the time, however, motorists and bicyclists always have a responsibility to keep a proper lookout and avoid colliding with pedestrians and other bicyclists.

This was the second well-publicized death involving bicyclists in Central Park over the last few months. On August 3 of this year, a 17-year-old cyclist struck 75-year-old Irving Schacter, who was jogging near 72nd Street on the east park loop. After suffering head trauma, Mr. Schacter was taken to New York Presbyterian Hospital and was dead within two days.

Mr. Marshall stated that the accident was “unavoidable.” In personal injury law, whether or not an injury is foreseeable is a key element for any negligence claim. Of course, Mr. Marshall’s assertion that the accident itself was unavoidable does not mean that the consequences of the accident were equally unavoidable. Also, whehter something was unavoidable is often a question for a jury, notwithstanding a defendants self serving assertions, especially where the accident’s unavoidability was caused by the defendant’s acting irresponsibly in the first place. It seems clear that any person operating a bicycle in a heavily-trafficked area, should do so with care so as to lessen the harm of any possible accident, even if the accident itself is unavoidable. According to the New York Times, the NYPD has already issued over 450 moving violations to bicyclists so far this year. In 2014, only 151 summonses were issued.

While some of the tabloid newspapers would have you believe that New York roads are run by overzealous bicyclists, in reality bicyclists, too, are at great risk on the New York City roads. Most bicycle-related accidents in New York involve some sort of contact with a motor vehicle that makes an unexpected left turn in the bicycle lane or fails to yield the right-of-way and share the road, thus forcing cyclists into a collision off the road. But other factors come into play, such as defective roads, poor maintenance, impaired visibility, debris, even parked cars opening their doors in the bicyclists’ path.

Furthermore, juries are sympathetic to bicyclists, and recent settlements include a $8.57 million verdict for a 36-year old bicyclist who was injured after being hit by a bus; $5,5 million on behalf of a bicyclist struck by a NYPD car (which was pursuing him); and $5,000,000 for the widow of a doctor who was hit and killed by a NYPD tow truck.

Ultimately, however all people on the road have a duty observe the New York State Vehicle and Traffic Laws.

Who Is Potentially Liable For My Injuries In A Construction Accident?

In general, whoever caused the accident is responsible. If it was the employer or a co-employee who caused the accident, you are usually barred by workers compensation laws from suing them because you’re getting comp you can’t bring a lawsuit. However, if the employer did not have workers compensation, you can sue the employer directly and the owners personally for failing to securing payment of compensation. Additionally, who’s liable often depends on how the accident happened. In general, under the labor laws, the work site owner or the owner of the construction site and the general contractor are always liable… Read More

What Are Top Misconceptions About Construction Accident Claims?

The biggest misconception is that people think that they only get comp. A lot of people don’t realize there are all these other remedies out there that can protect them and there are these other laws under which they can bring a lawsuit and get compensated for what they went through. Another misconception we see, particularly among the immigrant community and undocumented immigrants, is that they can’t sue because they arrived here illegally. We’ve handled a number of these cases successfully and the courts were pretty clear that the immigration status doesn’t matter because if you get hurt in the… Read More

Accidentes De Coche En Nueva York Con Conductores Automovilistas De Otro Estado

Como un abogado de accidentes de coche en Nueva York, quetambién asiste en un gran número de accidentes de camiones comerciales, hemanejado numerosos casos de lesiones personales que impliquan a losautomovilistas de otro estado que causan accidentes de tráfico en Nueva York. Una de las primeras preguntas que todas las víctimas de lesiones personales en un accidente de coche le pide a su abogado de accidentede coche es donde puedo demandar. La respuesta es que la ley de Nueva York establece la jurisdicción sobre el demandado si el accidente se produjo en Nueva York. En general, el abogado tendrá que… Read More

Who Is responsible For Fire Cases In New York

This week a wrongful death was suffered by an unfortunate tenant in fire in a Yonkers building. Fire crews battled the fire for several hours prior to getting it under control. Fires present dangers of both person injury and death to both those who live in buildings and the firefighters who battle them. Our accident attorneys have extensive experience in handling fire cases both in New York City and in Westchester. While the insurance industry will claim that fires which are accidental, are not the fault of anybody and just happen. Our New York City and White Plains Personal injury attorneys… Read More

Do I have a Lawsuit for my New York Construction Site Accident

Our New York construction accident lawyers have extensive experience in representing construction workers who have sustained personal injuries in worksite accidents. One of the most frequent questions our construction accident attorneys hear is do I have a case. While most construction workers are familiar with New York’s Ladder or Scaffold Law, which is known as Labor Law 240. This law generally imposes liability for falls from unsafe scaffolds or ladders, but there are a number of situations in which a construction worker who is injured on the job can sue for damages. One of the most comprehensive New York Laws… Read More

Outcry To End Construction Accident Fatalities In New York

Construction continues to be one of the most dangerous professions, and this week, thousands of New York City construction workers assembled to mourn the 30 wrongful deaths and fatilities of their fellow construction workers who died in construction accidents over the past two years. The construction worker are calling for new legislation to protect them and enforce job safety in an urgent call for action to help prevent future job-site fatalities. Our New York construction accident lawyers support new legislation and increased enforcement for job safety. Across New York City there have been vocal outcries and protests for greater work place… Read More

Personal Injury Update- February, 2017

The first week of February has proven to be a deadly week, with a number of tragic car accidents in the Bronx. Our New York City wrongful death and car accident lawyers know all to well how dramatically a car accident can affect someone’s life. An off-duty New York City Police Officer suffered an unfortunate wrongful death in a car accident in the Bronx this week. The passenger in the vehicle,who was a housing officer, also suffered serious personal injuries. The officer’s car flipped over and then caught fire in a traffic circle in the Pelham Bay section of the… Read More

OSHA Fines Contractors On Tappan Zee Bridge For Crane Collapse

The federal government’s Occupational Safety and Health Administration is fining the Tappan Zee Constructors more than $12,000 for last July’s crane collapse. In particular OSHA found that the contractors failed to keep a safe work site, and exposed employees to the risk of injury caused by the falling crane. The incident occurred when a crane, which was driving piles for the new Tappan Zee Bridge’s Westchester-bound bridge collapsed across all lanes of the current bridge. While cranes collapses in Manhattan have become somewhat of an epidemic. there are only a few Westchester maritime construction accidents, who are familiar with the interplay of maritime law… Read More

This Month’s Personal Injury Wrap Up- January 2017

Our New York City police brutality lawyers have handled numerous cases for inmates who were mistreated at Rikers Islands and suffered injuries, both by guards and other inmates. While cover ups and fabricated stories to justify guards behaviors are common place, Court papers this week exposed a new low.City investigators who were investigating an inmate’s sexual assault allegations on Rikers Island lost track of key biological evidence for four days before it surfaced with signs of tampering. The inmate claims a Rikers correction officer sexually abused her in May 2013 by forcing her to perform oral sex on him and says… Read More

Attention To Detail Leads To Summary Judgment

In a recent case, our White Plains Lawyer, Michael Joseph won a summary judgment motion for a client who backed out of a parking spot and was hit by another vehicle. Summary judgment is used to expedite a case when there is no dispute as to the important facts of the case. When there are no issues of fact, it can be determined which party is entitled to judgment without having to proceed to trial. Michael Joseph is considered to be one of the most experienced car accident lawyers in Westchester and has won numerous summary judgment decisions in favor… Read More

The Law Offices of Michael H. Joseph