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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
s pointed out that the doctrine of primary assumption of the risk is limited to participation in recreational or sporting events where there is a commonly understood, elevated risk of danger inherent in the activity. (See e.g. Turcotte v Fell et al, 68 NY2d 432 - falling off of a horse when participating as a jockey in a horse race.) Plaintiffs argued that the courts have not and should not extend the doctrine beyond its limited purpose and application. With respect to express assumption of the risk, plaintiffs argued that the doctrine amounts to a contract or agreement between the parties pursuant to which, before engaging in an activity, the injured party is made fully aware of the inherent risks involved in the activity and the injured party, nevertheless, voluntarily agrees to undertake the activity. Plaintiffs contended that the doctrine does not apply because 1) there was never an express agreement between the parties, and 2) defendants did not make the risks of smoking clear to Ms. Rose prior to the time she became addicted to cigarettes.
With respect to primary assumption of the risk, defendants responded that smoking is a recreational activity with inherent elevated health risks which have been made known to everyone since 1969 when the federal government mandated that warnings be placed on every cigarette package sold in the United States. Defendants also pointed out that such warnings were made stronger in 1985 and were required to be included in every advertisement for tobacco products published in the United States. Defendants further argued that the doctrine of primary assumption of the risk has been extended by some courts beyond sporting activities to other activities involving elevated risks and, therefore, should, similarly, be applied to cigarette smoking. With respect to express assumption of the risk, defendants again pointed to the federally mandated warnings arguing that each time Ms. Rose bought a new package of cigarettes (or picked up the package to smoke another cigarette) she was advised of the inherent elevated health risks of smoking and voluntarily chose to engage in the activity notwithstanding those warnings. Therefore, defendants maintained that, with each new package of cigarettes Ms. Rose smoked, she entered into a new express agreement to assume the health risks related to smoking.
The doctrine of primary assumption of the risk has not previously been determined to be applicable to smoking cigarettes by any court in the Appellate Division for the First Department. For the reasons stated below, this court also declined to extend the doctrine to the activity of cigarette smoking. The kinds of "recreational activities" which would be appropriate for the application of the doctrine of primary assumption of the risk are those activities which, similar to sporting activities, involve increased risks of immediate physical injury from an obvious or commonly understood source. "When the risks of the activity in question are perfectly obvious, the plaintiff is deemed to have consented to them and the defendant has satisfied its only duty of care which is to make conditions as safe as they appear to be..."(Hofflich v Mendell, 235 AD2d 784 [3rd Dept 1997][internal citations omitted]). Examples would include rock climbing or parachuting. In either of those activities the potential dangers for immediate physical injury as a result of falling are or should be apparent to anyone who engages in the activities. Furthermore, when the activity is concluded, there is no longer any increased risk of injury.
In cases where the appellate courts have applied primary assumption of the risk to activities that were not, strictly speaking, sporting or recreational activities,
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