We had a case that has now established the status of the law on the doctrine of primary assumption of the risk throughout all of New York State. The doctrine of primary assumption of the risk is a defense that insurance companies oftentimes will use to prevent and preclude people from recovering when they’re engaged in a sporting event. In this case, I was fortunate enough to represent Robin Custody, who was injured as a result of a rollerblading accident. In that case, the insurance company made a motion for a summary judgment asking the court to throw out the case based on this doctrine, saying that because she was involved in this sporting activity that she should not be able to recovery. I was successful in the lower court, arguing against the primary assumption of the risk doctrine.
There are three courts in New York State, the lower court, which in this case agreed with me and decided not to throw out the case. An appellate court in Rochester then heard the case. There were five judges that this case was brought before. By a margin of three judges to two – they determined that my case should be thrown out. In other words, that the defendant’s motion for summary judgment was granted. Because there were three judges versus two judges in that case, I was able to get a writ to the court of appeals.
The court of appeals is located in Albany. It is the highest court, and they make the decisions statewide for all cases within this state. In that court, I argued that the doctrine of primary assumption of risk should not be applicable in this case because it was not a sporting event, and it was not being held at a venue that normally people would use as a sporting event. She was rollerblading on a street and was actually going from a house to the street when it happened. The court of appeals in the Custody case decided in favor of Robin Custody, and in their opinion, wrote that now the doctrine of primary assumption of the risk only applies when there is an individual who is engaged in a sporting event at a location which is typically intended for that sporting event.
In other words, if she was roller-skating in a roller rink, the doctrine of primary assumption of the risk would have prevented her from recovery. Because this was not a sporting even and was outside of that type of venue, the court of appeals ruled in our favor. This case has become an extremely significant case in New York State. It is now the leading case on the issue and has paved the way for thousands of people throughout all of New York State and their ability to successfully pursue cases where they otherwise would have lost those cases based on this doctrine.