Injured Go-Kart Rider Assumed Risk of Being Bumped; Negligence Case Dismissed

In Garnett v. Strike Holdings LLC, 2015 NY Slip Op 06694 (App. Div. 1st Dept. Sept. 1, 2015), plaintiff was injured while riding in a two-seat go-kart; “[w]hile driving on the track, they were allegedly bumped twice by other go-karts, allegedly causing injuries to plaintiff, including ‘Reflex Sympathetic Dystrophy.'”

Defendant moved for summary judgment, on the ground that (among other things) “plaintiff assumed the risk of a voluntary recreational activity by participating in the go-kart race.”

The motion court denied defendant’s motion; the appellate court reversed.

The court explained and applied the doctrine of assumption of risk as applied to recreational activities:

Although Strike may not avoid liability based on the written waiver it asks its customers to sign, the common-law assumption of risk doctrine is nevertheless applicable. This doctrine applies to certain types of athletic or recreational activities, where a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk. While participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced, the concept of a known risk includes apparent or reasonably foreseeable risks inherent in the activity.

The activity in which plaintiff engaged is a type to which the assumption of risk doctrine is appropriately applied. In riding the go-cart, the plaintiff . . . assumed the risks inherent in the activity. Those risks included the risk that the go-cart would bump into objects. Of course, the apparent or reasonably foreseeable risks inherent in go-karting also include the risk that vehicles racing around the track may intentionally or unintentionally collide with or bump into other go-karts. It is that inherent risk which negates any duty on the part of the defendant to safeguard [plaintiff] from the risk.

… It cannot be reasonably suggested that contact between go-karts during a race is anything other than just such a commonly appreciated risk of go-karting. Consequently, the operator cannot be held to a duty to protect plaintiff from that risk, even if plaintiff herself failed to recognize the risk.

Since the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart, no such duty to plaintiff will be deemed to have been created by the operator’s rule prohibiting go-karts from intentionally bumping into other karts, or by its policy of stopping the race when bumping is observed.

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