On April 27, 2023, the New York Court of Appeals retained a form of the primary assumption of risk doctrine despite the enactment of the comparative fault regime of CPLR Article 14 in 1975. The doctrine applies only in a narrow set of circumstances, such as in athletic and recreational activities, where the benefits outweigh the significantly heightened risks. The assumption of risk doctrine defines the standard of care under which a defendant's duty is defined and circumscribed "because assumption of risk in this form is really a principle of no duty, or no negligence and so denies the existence of any underlying cause of action." In these limited circumstances, "primary assumption of the risk applies when a consenting participant in a qualified activity 'is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'".

Essentially, the Court of Appeals recognized that the assumption of risk doctrine may not "sit comfortably" within the landscape of comparative fault, as it operates as a total bar to a claim - because "athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks". However, "a participant is not deemed to have assumed risks that are concealed or unreasonably enhanced". Thus, the Court of Appeals affirmed the summary dismissal of a basketball player who was injured when he fell into the bleachers during a practice drill played without boundary lines. However, in a second case involving a complicated baseball drill practice involving two batters hitting to the infield protecting players with a protective screen between first and second base, the Court held that a jury should decide whether "the risks were concealed or unreasonably enhanced by the complexity of the drill...." Grady v Chenango Val. Cent. Sch. Dist., 2023 WL 3102723--