New York’s Assumption of Risk Doctrine Generally (But Not Always) Bars Personal Injury Claims For Adventure Sports Activities

I am in my final days in Costa Rica where I have been exploring rain forests, volcanos, and beaches. Some of the exploring is (just a little) risky.  Costa Rica is famous for its “environmental tourism” also called “adventure tourism”.  But where there is adventure there is a risk of misadventure.  In other words, s— happens.  And since I can’t go anywhere without taking my lawyer brain with me, I have been thinking a lot about the “assumption of the risk” doctrine, which protects sport facilitators from lawsuits by participants who might get hurt while engaging in the sport. This includes of course adventure sports.

I have had some “misadventures” here already.  Read on and find out about them!

But first, a little about the assumption of risk doctrine.  In New York, this means that if you are injured in an adventure sport such as zip-lining, hiking, bungee jumping or whatever, it is difficult to bring a claim and get compensation in court against the entity that provided or facilitated your participation in the activity.  It is pretty much universally the rule – in New York and everywhere – that you “assume the risk” of dangerous activities you choose to participate in.  This is based on a fundamental concept of law . It’s called “common sense”.

The doctrine of assumption of the risk is much stricter down in Costa Rica than in New York.  In New York,  if you can show that the risk that caused your injury was not obvious or not inherent in the sporting activity, or that the sporting activity provider made the activity more dangerous than it had to be, you can strike down the assumption or risk defense and and hold the sporting activity facilitator liable for damages.  Not so in many other places, including in Costa Rica.

This week’s activities are a good example of the kinds of risks we have assumed down here.

For example, a few days ago we walked about five miles through a national park (Monteverde) which features a thick jungle.  Meandering foot paths snake through the forest.  Foot paths turn to suspension bridges hovering over deep gorges. There are about thirty varieties of poisonous snakes hidden among the verdant ground cover. Fire ants and disease-bearing mosquitoes flit about in the air and ground. There are scorpions, too (we saw two) and some poisonous spiders.

At the entrance to the forest trails, a large sign warned us that we were assuming a laundry list of risks, including being attacked or bitten by animals.  We had to sign a waiver to get in.  Here are some photos of the Park.  The first one features yours truly pointing at a strange looking bird (not captured in the photo):

At night we took a guided tour of the rain forest.  Most of the forest animals are nocturnal, so if you want to see them, you have to go out at night with flashlights.   There are many strange animals, such as the two-toed sloth, which you can catch a glimpse of only at night.  Again we had to sign a very long waiver, which included assuming the risk of being bitten by poisonous snakes.  I asked the guide about the snakes and he said the dangerous ones live up in the trees and rarely come down to the ground where they could present a danger to passers-by.  But you never know!  Well, wouldn’t you know it, about 20 minutes into the tour, a green colored snake appeared on the path right in front of us on.  I snapped a picture:

Fortunately, our flashlights spotlighted it so we were able to avoid it.  Since it was vivid green, it contrasted sharply against the brown earth.  Our guide told us it was a “green vine snake”, the most poisonous snake in the park.  He said he had only seen one once before in his 10 years as a night-time jungle tour guide.  So, he said, we were “lucky” to have been able to see it!  I personally felt lucky, but not to see it, just to have avoided being bitten by it. No question about it, though, I had assumed the risk of being bitten by that very poisonous snake.  If I had been bitten, I would have no legal recourse of course.

We saw many cool animals (but, alas, no sloths) in our two-hour romp through the night forest.  And we had avoided being attacked or bitten by any forest animals — or so I thought.

But when I woke up the next morning I felt a pain in my left calf.  I then felt the area with my finger.  I noticed a bulge about the size of a corn kernel.  I figured I had been bitten by a mosquito and had just picked it in my sleep until a scab formed.  With a mosquito bite, the only thing I had to fear was a case of malaria (rare) or zika (usually not a problem unless you are pregnant) or dengue (high fever, headache, vomiting, muscle and joint pains).  But upon closer examination, I saw the bulge had legs!  Upon even closer examination, I saw it was a tick with its head buried deep into my skin and its abdomen fat with my blood!  I took the photo on the left below and then ripped it off my leg using a fingernail. I then took the picture on the right of it lying on my bed sheet.

The little sucker then started moving!  I extracted sweet revenge by flushing it down the toilet.  I then looked up the little bugger online and found out it can carry some dangerous bacteria, (though not Lyme disease).  And of course if I do fall ill from some rare tropical tick-induced disease and die a miserable contorted-in-pain death, I will have no legal recourse against the Park because I assumed the risk of being bitten or attacked by any animal, including by a tick.

Another risk we assumed was driving on Costa Rica’s back roads.  They are unpaved, studded with potholes and large protruding rocks, narrow with blind curves, and during the heavy rains that fall almost every afternoon, they get muddy and treacherous.  When we rented our all-wheel drive jeep, we signed a slew of papers declaring we understood and accepted the risks of getting into accidents and falling victim to landslides, etc.  (So far, no accidents!)

Another risk we have assumed here is the danger of earthquakes.  Small ones are common, and big deadly ones happen every couple of decades. We have not felt even a tremor so far.

How about volcanoes?  They can explode, spew lava or ash, and kill.  There are four or five very active volcanoes in Costa Rica.  We climbed to the top of one of them, called Irazu. Here I am pointing to it before we climbed it:

When you get up top there are actually several craters.  I took this picture standing on the rim of the highest crater looking down at an older crater below that has become a crater lake:

The crater I am standing on last erupted in 1964.  Could it erupt while I am standing on it? Possible, but not likely.  But if it did – you guessed it – I assumed the risk!

Oh yeah, and I almost forgot to mention that my wife got stung by a jelly fish when were in a beach resort yesterday.  The locals gave her the cure:  Put urine on the bite!  I kid you not.  She did it, and it worked. (I won’t tell you whose urine it was).  But, yes, my wife assumed the risk of being stung by a jelly fish when she entered the Pacific Ocean waters.  Can’t blame the beach resort.

Life with no risk is no fun.  We assume the risk of getting hit by a falling meteor every time we step outside.  Some of us are more risk adverse than others.  For example, I won’t ride a motorcycle.  The small pleasure I would derive from it does not outweigh the risk for me.  But I do derive a great deal of pleasure for travel and adventure.  I willingly assume those risks.

But remember that in New York, unlike in Costa Rica, you assume only the obvious, inherent risks of a sporting activity, not the hidden ones or ones that the activity provider made greater than they had to be.  If you get hurt in a sporting “adventure” in New York, check with a New York personal injury lawyer with experience in sporting injury cases to see if you have a case.

Keep safe!

Mike Bersani
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Syracuse NY Personal Injury Lawyers
Michaels Bersani Kalabanka

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