Posted in on September 29, 2016
In the case Tillayevv. Fight Factory, et al, the plaintiff (who was under 18 years of age at the time) was injured during a boxing/sparring session. The plaintiff was in the ring and stepped on an area of the mat which “sunk in” a few inches causing him to fall and break his femur. Plaintiff testified that he wasn’t hit by his sparring partner, that he had been in the ring over 30 times prior to the date of accident and that he had no notice of this “soft spot”. Movant submitted evidence that the ring was inspected annually by the N.Y.S. Athletic Commission & Amateur Boxing Association as well as before any official matches. The last formal inspection was a year before the accident. The ring was also cleaned daily.
In denying the defendant’s motion for summary judgment, Justice Rivera gives a good rundown of assumption of risk, both express and primary. With respect to express assumption of risk, the Court notes that same involves an agreement between the parties, in advance, that the defendant need not use reasonable care for the benefit of the plaintiff and will not be liable to the plaintiff for the consequences of negligent conduct. However, the Court notes that “broad and sweeping language” would be ineffective to bar an action against a defendant. Moreover, and what the Court ultimately found dispositive with respect to this issue is that a minor is not bound by a release executed by his parent. Since the waiver in this case was signed by the plaintiff’s mother, it did not bind the plaintiff.
With respect to primary assumption of risk, same also relieves a defendant of its duty to use reasonable care and is also a bar to recovery. It applies where the activity which the plaintiff is voluntarily participating in is so inherently risky that the injury-causing event is a known, apparent or reasonably foreseeable consequence of that activity. The Court notes that boxing is an inherently dangerous activity and further notes that it is “not limited to injuries sustained from actual boxing” but may apply to defects found in the ring. However, the Court denied the defendant’s motion, citing to the fact that participants will not be deemed to have assumed “concealed or unreasonably increased” risks. In this case, the plaintiff testified that he was unaware of the defect (despite boxing in that ring 30 times) and that the defect was “not readily apparent”. Moreover, the doctrine of assumption of risk was not meant to apply to defective equipment.
By Jason Katz
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