Assumption of Risk and the Swimming Pool

The fact pattern seems simple enough. A high school student at a swim meet dives off a diving block into the shallow end of the pool, four feet deep, and is injured when hitting the bottom. (A.L. v. Chaminade Mineola Socy.) She sues everyone involved.

Most lawyers would jump up and yell, “Assumption of risk! Dismiss the case!” And in fact, that is what the lower court did on the defendants’ motion for summary judgment.

That doctrine states that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. If so, case dismissed, and it isn’t even necessary to discuss if the defendant was negligent. (see, What Risks Have You Assumed?)

But the area to focus on, as always, is what constitutes “commonly appreciated risks?” Commonly appreciated by whom? If risks are concealed or unreasonably increased over those inherent in the sport, then the plaintiff might be able to plow ahead.

(Thus, a sporting waiver shouldn’t be written in legalese for a court to view in the event of an injury, but as an opportunity to explain “commonly appreciated risks,” as I did with this trail race waiver that I once crowd-sourced.)

Here, the critical factor is whether the participant’s appreciation of the inherent risk is “to be assessed against the background of the skill and experience of the particular plaintiff.”

As the matter came before the court on a summary judgment motion, the court’s inquiry is devoted to seeing if there are issues of fact for a jury. Or can the court decided it as a matter of law?

But the student testified at her deposition that “she was a competitive swimming novice with little to no experience diving into shallow water from a starting block, and that she did not receive adequate training from her coaches to safely perform race-start dives in this manner.

Since the issue of assumption of risk must be balanced against the the background of the skill and experience of the injured party, there was an issue of fact for the jury.

Thus, the Appellate Division (Second Department) reversed the lower court and sent this matter back for trial.