Articles & Publications 03.07.24

What The Hookah?! Assumption of the Risk Doctrine Does Not Apply To Accident At Hookah Lounge

In Gilliard v. Manhattan Nuvo LLC, New York’s Appellate Division, First Department held that the assumption of the risk doctrine did not extend to an accident at a birthday party at a hookah (a water pipe used to smoke specially curated tobacco) lounge. Although the birthday party at the premises was arguably a place of “recreation” that could implicate the assumption of the risk doctrine, the plaintiff was not engaged in a sporting activity. Although attending a birthday party may be viewed as a recreational activity, the activities at the premises did not possess the “beneficial aspects of sports” that courts have found as a justification to apply the assumption of the risk doctrine. Consequently, the motion for summary judgment arguing that no duty of care was owed to her under the circumstance went up in smoke and was properly denied.

Plaintiff alleged that while attending a birthday party at defendant’s hookah lounge, a hookah that contained a bowl with burning coals fell on her, thereby causing injuries to her chest. According to plaintiff, the hookah had been placed on the table in front of her and was knocked over by patrons who were dancing nearby.

The Appellate Division, First Department determined that the Supreme Court correctly rejected defendant’s argument that the assumption of risk doctrine was applicable to the facts of this case. The doctrine is generally limited to personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic or recreational pursuits that take place in designated premises. Further, the Appellate Division, First Department noted that the application of the assumption of the risk doctrine is “most persuasively justified” for its “utility in facilitating free and vigorous participation in athletic activities” that “possess enormous social value, even while they involve significantly heightened risks” that may be voluntarily assumed to “preserve [the] beneficial [aspects of sports] as against the prohibitive liability that would otherwise arise” (Trupia v Lake Cent. School Dist., 14 NY3d 392, 395, 927 N.E.2d 547, 901 127 [2010] [internal quotation marks omitted]; see Grady v Val. Cent. Sch. Dist., 40 NY3d 89, 94-95, 194 716, 215 N.E.3d 1157 [2023]).

Last year, the Court of Appeals held that the assumption of the risk should be circumscribed to athletic and recreative activities because they possess enormous social value, even though they involve heightened risks. The Court of Appeals balanced the potential for crushing liability on participants, sponsors, and venue owners. It noted those circumstances merited protection, but the assumption of the risk should not displace the principles of comparative fault that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.

In Gilliard, the Appellate Division, First Department also highlighted the defendant’s failure to demonstrate plaintiff’s awareness of the risk of the injury (or consent to the same). Likewise, the evidence that any risks presented were enhanced by the fact that patrons were allowed to dance nearby and that the hookah was on the table and not on the “preferable” location, i.e., the floor, undercut the defendant’s position.