I do not perceive any basis for a dismissal of the complaint upon the ground that as a matter of law the plaintiff’s assumption of risk was a 100% equivalent of damages, and the dissenters suggest no solid basis whereby I can conclude that there was a failure by the plaintiff to prove facts sufficient to make a jury issue of negligence or lack of reasonable care.
We are concerned on this appeal with the purpose and meaning of CPLR 1411, enacted by the Legislature in 1975, which reads as follows: "In any action to recover damages for personal injury, injury to property, or wrongful death, 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.”
The key to the section is the word "damages” and connotes the adoption of comparative negligence in this State, which prior thereto in many cases had resulted in compromise verdicts by the jurors. The section further establishes a rule known as "culpable conduct”, which specifically includes contributory negligence and assumption of risk. It in no way eliminates these basic principles, but includes them in the broader term.
The decisional law holdings in the cases such as Ingersoll v Onondaga Hockey Club (245 App Div 137) and Baker v Topping (15 AD2d 193) remain appropriate as a defense against liability for damages in personal liability, property damage and wrongful death actions. The distinction now applicable is that instead of having to establish a "complete” lack of culpable conduct, a plaintiff must only establish that the damages are something more than the proportion of his culpable conduct to the conduct of the defendant or defendants as the case may be. The defendant now cannot rely upon a complete release from damages simply by showing contributory negligence or assumption of risk (or other culpable conduct) on the part of the plaintiff. However, the defen*242dant still can completely avoid damages by proving that upon comparison the contributory negligence or assumption of risk proportionally reduces damages to zero.
In the case of Micallef v Miehle Co., Div. of Miehle-Goss Dexter (39 NY2d 376, 387, n 2) the court stated in a footnote: "Since the enactment of CPLR 1411-1413, no procedural distinctions between contributory negligence and assumption of risk now come to mind.” In the present case we are not concerned with procedure, but with the substantive law applicable to a negligence action. It seems apparent that a defendant in a case with facts involving the principle of assumption of risk is still entitled to have the elements thereof charged to a jury as was the case before comparative negligence. The only difference is that the jury cannot be charged that assumption of risk, if they find it to have been assumed, is automatically a complete release of the defendant from damages (Baker v Topping, supra, p 196). The jury must now apply the risk assumed in proportion to the culpable conduct of the defendant.
This reasoning as applied to the present case justified the request of defendant for a charge of the rule of law of assumption of risk. In response to the request by defendant’s counsel for such a charge (prior to the actual charge) the court responded: "I intend to discuss very generally that there are certain inherent risks in any spectator sport of this nature, but I am not going to get into the doctrine of assumption of risk and what it means.” It is evident that the court recognized the continuing viability of the defense of contributory negligence as it distinctly charged that particular doctrine of law. There is no basis for not so charging as to assumption of risk. The charge as requested was of particular importance in what might be characterized as a spectator event where the risk is evident from the type of event and where the assumption of risk is not necessarily the equivalent of duty.
The fulcrum for my vote in this case is whether or not the charge of the court was sufficient to assure that the principles of assumption of risk were adequately a part of the consideration of the jury in reaching a verdict. From a reading of the charge in its entirety, the jury would have considered the obvious danger of being struck by a ball in determining what, if any, damages were caused by the conduct of the plaintiff and in what proportion. Such a conclusion is further buttressed by the request of the jury for further instructions as to *243"compensation”. Under such circumstances, if there was error, it was not so egregious as to require a new trial as to damages.
The judgment should be affirmed.