Best's Review


Play Ball!

Schools shouldn’t assume they are protected from lawsuits when a student athlete gets injured during a game.
  • Frank Raia
  • February 2020


Colleges and universities often face the unique challenge of defending lawsuits brought by students injured while participating in school-sanctioned sports and recreational activities. To defend these lawsuits, the schools will often move for summary judgment to dismiss the matter based upon the assumption of risk doctrine.

Under the assumption of risk doctrine, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks inherent in, and arising out of, the nature of the activity. Where the facts of a case demonstrate a consenting plaintiff (student) is aware of the inherent risks of engaging in the particular activity, has an appreciation of the nature of those risks, and voluntarily assumes the risks of injury inherent to the particular activity, the school will be relieved from liability. Of course, the issue to be determined by the court is what are those risks deemed to be “commonly appreciated” and “inherent in” the activity. To make this determination, the court will analyze a student's awareness of the particular risk assessed against the background of the skill and experience of the particular student.

In determining whether a college or university has violated a duty of care to a student engaged in a sporting activity, the applicable standard should include whether the conditions caused by the school's negligence are unique and created a dangerous condition over and above the usual dangers inherent in the sport. Thus, there must be a showing of some negligent act or inaction, referenced to the applicable duty of care owed to the student by the school, which may be said to constitute a substantial cause of the events that produced the injury. When a student is injured during a sports or recreational activity, and the inherent dangers of said activity are obvious, the school's duty of care under such circumstances is to make the conditions as safe as they appear to be. “Duty” is an essential element of negligence. If the risks of the sporting or recreational activity are fully comprehended or perfectly obvious, and the student proceeds to take part in said activity, it can be said the student has consented to those risks, the school has performed its duty, and the matter should be dismissed. The policy underlying the assumption of risk doctrine is to facilitate free and vigorous participation in athletic activities. As long as the school's conduct does not unreasonably increase the risks assumed by the plaintiff, the school will be protected by the assumption of risk doctrine. To establish plaintiff's assumption of risk, the injured plaintiff did not have to foresee the exact way an injury occurred, so long as he or she was aware of the potential for injury from the mechanism by which the injury resulted. If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he or she is injured as a result of those risks.

Dismissal of these matters based upon the assumption of risk doctrine is never a simple task. The court's decision is always based upon very specific facts, taking into consideration the student's background, whether the risks are perfectly clear or fully comprehended, and whether the school's action or inaction unreasonably increased the risk of injury. The courts do not take a cookie-cutter approach in deciding a motion based upon assumption of risk grounds, but rather, will analyze each student and each activity separately and distinctly, making such a motion for dismissal a challenging task for any college or university.

A motion for dismissal on the basis of assumption of risk can also be made after the plaintiff and/or defense rests at trial. As the courts will often reserve decision, a specific jury question on the verdict sheet to the jury as to whether the plaintiff assumed the risk of injury can result in a defense verdict even before the jury is asked to decide whether the defendant was negligent and, if so, whether defendant's negligence was a substantial factor in causing plaintiff's injury, can be most beneficial. It is, of course, within the trial judge's discretion to include this question on a verdict sheet.

Best’s Review contributor Frank Raia is a partner at Rivkin Radler in Uniondale, N.Y. specializing in civil defense litigation, involving premises liability, construction/labor law, products liability, property damage and automotive liability. He can be reached at

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