The system of comparative causation established by CPLR article 14-A encompasses both the strict liability of an owner of a domestic animal to a person injured as a result of the animal's vicious propensity and the assumption of risk implied from the injured person's use of or contact with the animal with actual or constructive notice of such propensity. It does not, however, cover the express assumption of risk by the injured party. Plaintiff, a participant in a donkey basketball game, would have been entitled to a jury instruction on comparative causation based on implied assumption of risk as she requested had she not testified that she was informed by defendant's employee prior to her participation that she participated at her own risk. In view of that testimony, however, her participation in the games constituted an express agreement on her part to assume the risk, entitling defendant to the direction of a verdict in its favor. The order of the Appellate Division, affirming the judgment for defendant entered on the jury's special verdict, should, therefore, be affirmed, with costs.
Plaintiff, a student teacher at the South New Berlin Central School, was injured during a donkey basketball game when the donkey she was riding put its head down and she fell off. The game, sponsored as a fund-raising event for the senior class, was
Plaintiff sued both the Board of Education and defendant Buckeye, but settled her claim against the Board of Education prior to trial. The claimed negligence on the part of Buckeye as particularized was that knowing of the vicious propensities of the donkey, defendant allowed plaintiff to ride without sufficient warning of such propensities, failed to provide adequate supervision and failed to provide adequate safety equipment. Buckeye, in addition to denying negligence on its part, pleaded as separate affirmative defenses assumption of the risk and reduction of damages by reason of plaintiff's culpable conduct. There was evidence that the instructions given by Buckeye's employee to the participants included the statements that the donkeys do buck and put their heads down causing people to fall off and that if injuries happened the participants were at their own risk.
At the close of the evidence defendant moved to dismiss on the grounds that no vicious propensity had been shown and that by plaintiff's own admission she had assumed the risk, and plaintiff moved for a directed verdict and also for a comparative negligence charge from New York Pattern Jury Instructions — Civil.
The matter is before us by our leave (62 N.Y.2d 602). We conclude that the comparative causation principle enacted by CPLR 1411 applies to a strict liability action involving the vicious propensities of a domesticated animal, and to the implied assumption of risk by a person injured by such an animal, but not to the express assumption of risk by such a person. Although implied assumption of risk, therefore, was under these circumstances a defense in mitigation of damages to be pleaded and proved by defendant rather than an element of plaintiff's cause of action, defendant was entitled to dismissal of the complaint at the end of the plaintiff's case by reason of her admission that she had been informed both of the risk of injury and that "the participants were at their own risk." We, therefore, affirm.
The rule governing one who keeps an animal with knowledge of its vicious propensities is one of strict liability or, as it is sometimes called, absolute liability, rather than negligence (Molloy v Starin, 191 N.Y. 21, 25; Muller v McKesson, 73 N.Y. 195, 200; Lynch v McNally, 73 N.Y. 347, 349; see, Strunk v Zoltanski, 62 N.Y.2d 572; People v Sandgren, 302 N.Y. 331, 339; cf. Hosmer v Carney, 228 N.Y. 73, 75-76). It is, however, important to note that prior to enactment of CPLR article 14-A, contributory negligence was not a defense to such liability (Molloy v Starin, supra) but assumption of the risk was (see, Stevens v Hulse, 263 N.Y. 421),
This is not a situation like Akins v Glens Falls City School Dist. (53 N.Y.2d 325) in which prior to adoption of CPLR 1411 there had been no determination of the scope of the duty involved because all participants were held to have assumed the risk, and in which the issue raised was scope of duty. Here the Trial Judge charged that if the donkey assigned to plaintiff had tendencies or propensities likely to cause injury to plaintiff, the defendant was aware of those tendencies and did not tell plaintiff about them or plaintiff was otherwise unaware of them, and those tendencies were a proximate cause of plaintiff's injuries, she was entitled to recover, but that if plaintiff was made aware of those tendencies either by defendant or by her own observation, she could not recover. There having been no objection to that charge by defendant, the issue on this appeal is not the nature of defendant's liability but whether plaintiff must be held not to have been entitled to the comparative negligence charge her attorney requested because she had expressly assumed the risk.
Until the enactment in 1975 of CPLR article 14-A, it was, except in an action for wrongful death, a substantive part of the plaintiff's right to recover in a negligence action that plaintiff prove himself or herself free from negligence contributing in the slightest degree to the occurrence (compare, Fitzpatrick v International Ry. Co., 252 N.Y. 127, 133-134, with Flynn v Long Is. R. R. Co., 289 N.Y. 283; and EPTL 5-4.2). The theory was that plaintiff's negligence was an intervening cause, which broke the causal connection between the defendant's negligent act and plaintiff's injury (Dowd v New York Ontario & W. Ry. Co., 170 N.Y. 459, 469-470).
Assumption of the risk, on the other hand, was predicated not upon plaintiff's intervening act, but upon his or her agreement, express or implied, not to hold defendant responsible for the injury-causing act, negligent though it may have been, which resulted from plaintiff's entering into the activity with knowledge of its danger, or under circumstances from which it could be found that he or she should have had such knowledge (id.; Restatement [Second] of Torts §§ 496A-496F). The burden of
Confusion in assessing where the burden lay in a particular situation arose from the imprecise language of the cases and the narrowness of distinction between the two doctrines in some situations (McFarlane v City of Niagara Falls, 247 N.Y. 340, 349; Dowd v New York Ontario & W. Ry. Co., supra, at p 471). The confusion was compounded, moreover, by cases which, on the one hand, suggested that where plaintiff assumes the risk there is no breach of duty on defendant's part and thus no negligence (McEvoy v City of New York, 292 N.Y. 654, affg 266 App Div 445, 447) and, on the other, used assumption of risk language in reference to situations in which the law imposed no duty on the defendant with respect to a person in plaintiff's status.
It is against this background that CPLR article 14-A was enacted in 1975, providing that as to all causes of action accruing on or after September 1, 1975, "the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages" (CPLR 1411), and "shall be an affirmative defense to be pleaded and proved by the party asserting the defense" (CPLR 1412). The proposed article was presented to the Legislature with a Memorandum of the Judicial Conference (1975 NY Legis Ann, at 23) and explained in the Report of the Judicial Conference to the Legislature on the CPLR (Twenty-first Ann Report of NY Judicial Conference, 1976, at 235 ff) and in a Memorandum of the Sponsoring Assemblyman urging its adoption (NYLJ, Apr. 23, 1975, p 7, cols 1-3). Those memoranda made clear that "this article is applicable not only to negligence
With respect to "culpable conduct" the Report of the Judicial Conference stated that the phrase was "used instead of `negligent conduct' because this article will apply to cases where the conduct of one or more of the parties will be found to be not negligent, but will nonetheless be a factor in determining the amount of damages", and that "[t]his article permits the apportionment of damages in cases * * * in which the plaintiff's negligence may be the only negligence, but the defendant's conduct is nonetheless `culpable' and therefore to be considered in determining damages" (1976 Judicial Conference Report, at 240; emphasis in original). Culpable conduct, it noted, included not only assumption of the risk and contributory negligence, but also product misuse and the patent danger rule declared in Campo v Scofield (301 N.Y. 468) and applied in strict liability cases (Bolm v Triumph Corp., 33 N.Y.2d 151).
Because the Legislature contemplated that article 14-A would "apply to cases where the conduct of one or more of the parties will be found not negligent" and "in which the plaintiff's negligence
Thus, what the statute requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party's conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury. Comparative causation is, therefore, the more accurate description of the process,
Neither article 14-A nor its legislative history defines "assumption of risk." The common law distinguished between express and implied assumption of risk. Express assumption, which was held to preclude any recovery, resulted from agreement in advance that defendant need not use reasonable care for the benefit of plaintiff and would not be liable for the consequence of conduct that would otherwise be negligent (Prosser, Law of Torts, at 442 [4th ed]; Schwartz, Comparative Negligence § 9.2; Comparative Negligence Law & Practice § 4.20  [b] [i] [Matthew Bender]; Restatement [Second] of Torts § 496B; Uniform Comparative Fault Act § 1 [b], 12 ULA [1985 Cum Ann Pocket Part], at 41; Ann., 16 ALR4th 700). Implied assumption was founded not on express contract, but on plaintiff's voluntarily encountering the risk of harm from defendant's conduct with full understanding of the possible harm to himself or herself (Prosser, op. cit., at 445; Schwartz, op. cit. §§ 9.1, 9.3; Comparative Negligence Law & Practice op. cit. § 4.20  [b] [ii]; Restatement [Second] of Torts §§ 496C, 496D, 496E), and according to some authorities required that plaintiff's consent to the risk involved be unreasonable under the circumstances (Schwartz, op. cit. § 9.1, at 157; Comparative Negligence Law & Practice, op. cit., at 4-33 — 4-34; Uniform Comparative Fault Act § 1 [b] and comment; Restatement [Second] of Torts § 496E comment d).
The Legislature is, however, presumed to be aware of the decisional and statute law in existence at the time of an enactment (Hammelburger v Foursome Inn Corp., 54 N.Y.2d 580, 588; Easley v New York State Thruway Auth., 1 N.Y.2d 374, 379), and to have abrogated the common law only to the extent that the clear import of the language used in the statute requires (Transit Commn. v Long Is. R. R. Co., 253 N.Y. 345, 355).
Here, as noted by Schwartz (op. cit. § 9.2, 1981 Cum Supp, at 74), CPLR 1411 leaves it "unclear whether express assumption of risk is subject to comparison." But, when article 14-A was enacted, it had long been the law that a contractual limitation of liability for negligence or other fault of a party seeking to be relieved of his ordinary responsibility did not violate public policy (Van Dyke Prods. v Eastman Kodak Co., 12 N.Y.2d 301;
Here there is evidence from which the jury could have concluded that plaintiff had knowledge of the risk and by participating in the games voluntarily assumed it, and no question that plaintiff's conduct in mounting the donkey from which she was thrown was a cause in fact of her injuries. She would, therefore, have been entitled to a comparative causation charge on implied assumption of the risk had she not conceded that she was told before the games began that "participants are at their own risk." In light of that concession, however, the Trial Judge should have directed a verdict for defendant.
For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.