Layden v. Plante

Mercure, J.P. (dissenting).

Because we conclude that plaintiff Dianne A. Layden (hereinafter plaintiff) assumed the risk of aggravating her prior back injury while weight-lifting at a gym, we respectfully dissent. The doctrine of primary assumption of risk provides that a voluntary participant “engaging 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” (Morgan v State of New York, 90 NY2d 471, 484 [1997]; accord Anand v Kapoor, 15 NY3d 946, 947-948…