N.J. Model Civil Jury Charge 5.11

5.11 ASSUMPTION OF RISK – IN THE PRIMARY SENSE

(Approved 04/2001; Revised 11/2023)

NOTE TO JUDGE

The Committee notes, except in cases where there is a statutory

foundation, the defense of assumption of the risk is not a valid

defense in the normal negligence action. The Committee has

eliminated the pre-1984 Assumption of Risk Charge, since there is

no viable defense to a negligence action remaining in our law for

which such a charge would be required. See, McGrath v. American

Cyanamid Co., 41 N.J. 272 (1963), and Meistrich v. Casino Arena

Attractions, Inc., 31 N.J. 44 (1959).

There are fact scenarios, however, in which the concept of risk

assumption has been recognized by statute, and in such cases it

would be the obligation of the court to instruct the jury as to the

applicability of the statute in question. Such examples include:

Skiing: N.J.S.A. 5:13-1, et seq.

Roller Skating: N.J.S.A. 5:14-1, et seq.

Equestrian Activities: N.J.S.A. 5:15-1, et seq.

With regard to sports injuries in general, New Jersey has adopted a

recklessness standard of care in determining the duty that a

recreational player owes to another. Schick v. Ferolito , 167 N.J. 7

(2001) (golf); Crawn v. Campo, 136 N.J. 494 (1994) (softba ll). A

negligence standard of care applies as to non-participants injured by

a participant/coach involved in the athletic endeavor. Dennehy v.

Windsor Regional Bd. of Ed., 252 N.J. 201 (2022).