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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
the activities involved were physical activities, the elevated risks involved were clear, and the immediate risks of physical harm ended when the activity ended. (See Belloro v Chicoma, 8 AD3d 598 [2nd Dept 2004], where one ladder was stacked on top of another ladder in an attempt to reach a second story window; Westerville v Cornell University, 291 AD2d 447 [2nd Dept 2002], in which a health care professional was injured by another participant in a training session during which the participants were practicing techniques to physically restrain agitated patients, the health care professional had substantial training in physical restraint techniques, many warnings of the potential for physical injury had been provided in the course materials, and the health care professional participated in the activity in spite of the warnings and risks; and Davis v Kellenberg Memorial High School, 284 AD2d 293 [2nd Dept 2001] where the plaintiff was injured while rocking a concrete bench by standing on it with other individuals and collectively shifting their weight back and forth.)
In Powell v Metropolitan Entertainment Co. (195 Misc 2d 847 [Sup Ct. NY Cty 2003]), another case cited by the defendants, the court held that the doctrine applied to hearing impairments allegedly caused by attending a rock concert. Powell, however, is a lower court case and, as such, is not binding precedent on this court. The harm encountered by the plaintiff in Powell was a loss of hearing (physical harm) immediate to his attendance at a concert with extremely loud music. Additionally, the evidence in the Powell case indicated that the plaintiff, an educated person, had temporarily experienced similar effects from prior concerts he had attended, found the music at this particular concert to be so much louder than others he had attended that he "found the noise level intolerable" and went to an area in the building outside the concert hall where he could still hear the music. Under these circumstances, and in the absence of any concrete evidence of the actual volume of this concert, the court in Powell elected to apply the doctrine of primary assumption of the risk determining that the plaintiff had not been forced to attend the concert, had sufficient prior experience and knowledge to comprehend the likely consequences of his actions and, nevertheless, chose to remain at the concert. In sum, the injury involved in the Powell case was an immediate physical injury (impairment of hearing) that could be easily anticipated or appreciated by any ordinary individual who had attended live music performances without the necessity for additional explanation.
None of the cases cited by defendants which have applied the doctrine of primary assumption of the risk present circumstances similar to cigarette smoking. In the cases where the doctrine has been applied: (1) the activities involved increased risks which were immediate and obvious to an individual with common understanding and knowledge without any need for extrinsic explanation or clarification, (2) the risk of harm dissipated upon cessation of the activity, and (3) the resulting injuries occurred at the time the participant engaged in the activity. In contrast, cigarette smoking involves increased risks of harm which: (1) are not immediate (with the possible exception of being burned), and are not intuitively obvious, (2) do not immediately dissipate once the activity of smoking cigarettes is discontinued, and (3) result in injuries which, for the most part, do not occur until years after the smoker begins smoking cigarettes.
Moreover, the doctrine of primary assumption of the risk is premised upon the concept that the participant in the activity is free to choose whether or
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