The path down from the road to a river is an open and obvious danger that the plaintiff assumes before walking down the path.

Plaintiff worked hard to come up with any possible legal theory to win.

Rooney v. Battenkill River Sports & Campground Holding Co. (N.Y. Sup. Ct. 2022)

State: New York; Supreme Court of New York, Third Department

Plaintiff: Jessica Rooney

Defendant: Battenkill River Sports & Campground Holding Company, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2022


Plaintiff sued for injuries she received while walking down a path to the river to go tubing. Defendant tube rental company proved the risks were open and obvious, and the plaintiff assumed the risks.


In July 2018, plaintiff sustained injuries when she slipped on a rock located on an access path while attempting to access the Battenkill River to go water tubing.

This is a case out of New York so the facts are few, and the decision is short.

Analysis: making sense of the law based on these facts.

Not all the legal arguments made by the plaintiff are going to be discussed here. The case is easy to read, and you understand them on your own.

The plaintiff was walking down an embankment to the river, which was not owned by the tubing company, when she fell. She sued for negligence and argued the defendant owed her a high duty of care because the defendant was a common carrier.

The trail court adopted that position and upheld the plaintiffs’ claims on that theory; however, the trial court dismissed the plaintiff’s claims because she assumed the risk causing her injury. The plaintiff appealed. The appellate court did not review the common carrier question.

(It would be extremely rare and unlikely that any transportation that was incidental to the recreational activity and only taking people from the shop to the put in would be found to be a common carrier by any court in any state.)

The gravamen of plaintiff’s contention is that the doctrine of primary assumption of risk is inapplicable here because, although she had traversed the at-issue access path on a prior occasion, such activity is not an inherent risk associated with water tubing. “Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”

The duty of the defendant in this situation is to exercise reasonable care to make sure the conditions are as safe as they appear. The defendant has a duty to search for unknown risks that may not be obvious to the guest. Meaning any risk that is visible is assumed by the guest, those risks that are hidden are not assumed by the guest.

The duty owed under these circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”

The court found that the defendant had met its burden and showed there were no hidden risks and the risks the plaintiff encountered were open and obvious.

Given this evidence, we find that defendant established its prima facie entitlement to judgment as a matter of law that plaintiff, who had prior experience water tubing and who had on a prior occasion used the same access path, assumed the inherent risk of her injuries. The risk of falling on uneven and rocky terrain while traversing the river’s embankment to access the river is a commonly appreciated and an obvious risk inherent in and arising out of the nature of the sport of river tubing…

Under New York law, when the defendant meets this threshold then the burden of proof shifts to the plaintiff to prove the defendant hid the risks or made the risk greater than they appeared.

Thus, the burden shifted to plaintiff to raise a triable issue of fact as to whether the defendant concealed or unreasonably enhanced the danger, engaged in reckless or intentional conduct or created conditions that were unique and not inherent in river water sports activities

The plaintiff failed to do so in two different ways. First, the plaintiff was unable to prove the defendant had anything to do with the path leading to the water, or that the path was in terrible condition with hidden dangers. Second, the plaintiff walked the same path in prior years without incident when tubing.

The court then summed up its analysis on why the plaintiff could not overcome her burden.

“One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity” and it is foreseeable that, in order to gain access to the river, plaintiff needed to traverse down an uneven embankment consisting of rock and gravel. Although plaintiff encountered less than optimal conditions on the river embankment access path in July 2018, the risk of falling on the natural, rocky terrain is interwoven with and inherent in the sport of river water tubing and therefore was assumed by her. Plaintiff’s vague and equivocal testimony that defendant unreasonably increased the risk of traversing the path was insufficient to create a question of fact. Moreover, although plaintiff testified that there was no warning sign at the access point, a warning sign is unnecessary as “[t]he duty to warn… does not extend to open and obvious dangers – particularly those encompassing natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses”

So Now What?

In New York, it is always an issue as to whether or not an activity will fall within the purview of New York General Obligations Law § 5-326 which prohibits a place of amusement from using a release. Several courts have interpreted New York General Obligations Law § 5-326 to mean a physical place and so a river may not qualify. However, based on several other decisions it might be worth putting release language into a written agreement for guests to sign.

At the very least, the defendant could use an assumption of risk agreement where the agreement points out the risk of tubing, including accessing the river, reinforce those risks in a safety talk and protect from more than the inherent risks of tubing.

It might not bring closure any quicker; however, it might deter a plaintiff from starting a case to begin with.

What do you think? Leave a comment.

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By Recreation Law    James H. Moss

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