Implicit Bias within the Primary Assumption of Risk Doctrine

This Article addresses the efficacy of the primary assumption of risk doctrine, and the improper extension of the doctrine to vitiate a plaintiff’s ability to obtain recourse in personal injury cases. When the New York legislature enacted the comparative negligence standard in 1975, it essentially revoked the applicability of the primary assumption of risk doctrine as a defense in tort litigation. However, the courts continued to apply the primary assumption of risk doctrine in tort cases involving sports or physical activity, analyzing it as an element of a defendant’s duty and serving as a complete bar to recovery for plaintiffs in violation of the legislative intent of CPLR section 1411. Furthermore, the extension of the doctrine to include spectators, bystanders, and its application in premises liability cases has created two classes of citizens in negligence cases, based upon implicit bias in distinguishing between injured plaintiffs. This Article demonstrates how the continued application of the primary assumption of risk doctrine is untenable, and analyzing the inherent nature of a sport and its participants is a factual determination, not legal, in which implicit bias impacts court rulings. Further, this Article argues for the elimination or restriction of the primary assumption of risk doctrine in the analysis of a defendant’s duty. In doing so, the courts would better reflect the legislative intent of the comparative negligence statute as well as our modern society, its growing social dynamics and diversity of all members of the community and revive consistency in treatment of plaintiffs in negligence cases.