FOR BREAKING NEWS VISIT WWW.QNS.COM NOVEMBER 21, 2019 • THE QUEENS COURIER 97
AUCTIONED-OFF
Q: I was at an automobile auction facility. It was comprised of a large parking lot, where thousands
of vehicles were parked, as well as several buildings. During the auction process, each vehicle for sale was
assigned a parking spot in the lot. When it was time to auction-off the vehicle, it would be driven down a
marked traffic lane in the parking lot and into the auction building. I regularly attended these auctions. I was
standing at the end of a lane in a clearly-marked safety area, waiting for a particular vehicle to be auctioned,
when I was struck by another vehicle.
A: Landowners and business proprietors have a duty to maintain their properties in a reasonably
safe condition. Your attorney is likely to argue that the owner designed the premises in a defective way, so as
to create a dangerous condition – that the actions of the driver were a natural and foreseeable consequence of
the overall design and operation of the facility. Suppose that the owner has a so-called expert testify that the
design and traffic controls utilized in the parking lot were appropriate and consistent with industry standards.
If so, your attorney will (a) attempt to show that the expert does not know what he is talking about and (b)
argue that, moreover, compliance with ‘industry standards’ does not prove that the owner was blameless.
Suppose that the owner argues that you ‘assumed the risk’ of being hit. You certainly did not.
Under the doctrine of ‘primary assumption of the risk’, a person who chooses to engage in certain recreational
or athletic activities 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. The doctrine applies when a consenting
participant in a qualified activity is aware of the risks, has an appreciation of their nature, and voluntarily
assumes them. Recognizing that athletic and recreative activities possess enormous social value, the courts
justify the doctrine for its utility in facilitating free and vigorous participation in such activities – even though
they involve significantly-heightened risks. The courts permit these risks to be voluntarily assumed to preserve
these beneficial pursuits.
Here, you were not engaged in a sporting event. Rather, you were simply and innocently standing
in a safety area at what your attorney will argue was a negligently designed and operated auction facility.
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