Pat Murphy, The Daily Record Newswire
If you tool around the neighborhood with wheels on your feet, you should accept the simple fact that you’ve appreciably increased your risk of falling.
But thanks to New York’s highest court, rollerbladers can now proceed relatively carefree because the tab for any injury may very well fall on some unfortunate homeowner.
In last month’s decision in Custodi v. Amherst, the New York Court of Appeals held that the assumption of risk doctrine did not bar the premises liability suit of a rollerblader who fell when one of her skates allegedly caught on the edge of a homeowner’s driveway.
The injured rollerblading enthusiast, Robin Custodi, broke her hip in July 2007 when she tripped and fell while skating in her residential neighborhood in Amherst, N.Y.
According to Custodi, just before the mishap she had left the street for the sidewalk to avoid a truck. Once she cleared the truck, Custodi tried to reenter the street via a driveway entrance. Custodi claims that she fell when one of her skates caught on a two-inch height differential where the edge of the driveway met a drainage culvert running the length of the street.
You’d think that an experienced rollerblader like Custodi would have been alert to a two-inch variation in road surfaces, which are common enough, but she wasn’t. And rather than accepting responsibility for her own inattentiveness, Custodi cast about for someone else to blame.
The driveway happened to serve the home of Peter and Susan Muffoletto, who predictably became the targets of the ensuing negligence suit that Custodi filed in state court.
In defending the suit, the Muffolettos contended that Custodi assumed the risk of injury by voluntarily engaging in recreational rollerblading, thereby negating their duty of care to her as property owners.
A state judge saw the inherent common sense in this argument and dismissed Custodi’s lawsuit. A state appellate court reversed, bringing the case to the state’s highest court.
Rather than taking the common-sense approach, the New York high court waded into the legal tall grass to reach a conclusion that will make personal injury attorneys smile. The court concluded that the state’s primary assumption of risk doctrine did not apply in this context. Writing for the court, Associate Judge Victoria A. Graffeo explained:
As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.
The judge said that the doctrine did not apply here because Custodi was not rollerblading at a rink, a skating park or in a competition.
“[A]ssumption of the risk ‘does not exculpate a landowner from liability for ordinary negligence in maintaining a premises,’” Graffeo wrote. “The exception would swallow the general rule of comparative fault if sidewalk defects or dangerous premises conditions were deemed ‘inherent’ risks assumed by non-pedestrians who sustain injuries, whether they be joggers, runners, bicyclists or rollerbladers.”
