Category: Infant

Claims Against Municipality, Infant, negligent supervision, School Liability

Assumption of Risk

A recent Court of Appeals touches on an issue present in two prior posts: one post was on injuries at school, and a second post dealt with exculpatory clauses. The legal issue is Assumption of Risk.

The Assumption of Risk rule announced in 1929 by legendary Judge Cardozo of the Court of the Appeals states: “one who takes part in . . . a sport accepts the dangers that inhere in it so far as they are obvious and necessary.” The rule was given an updated interpretation on April 27, 2023 in the cases of Grady and Secky.

Secky was a basketball player at New Paltz High School. The Coach asked players to participate in rebounding drill with another player to compete for a rebound. Secky got the worst of the competition and was thrown into bleachers, causing a right shoulder injury.

Grady was a baseball player at Chenango Valley High School. Grady was participating in a fielding drill with five players and two coaches. Grady was stationed at first base. To Grady’s right (between first and second base) there was a seven foot by seven foot fence. And on the other side of fence was a second player stationed at “short first base.” There was also a thrid baseman, short stop and second baseman. One coach was hitting ground balls to the third baseman who was throwing to the first baseman. A second coach (at the same time) was hitting ground balls to the short stop who was directed to throw the ball to the second baseman, and then the second baseman would throw the ball to “short first base.” Unfortunately for Grady, one of the balls from the second baseman, missed the “short first baseman,” went past the fence, and struck Grady on the right side of his face, causing significant vision loss.

The Court of Appeals overruled the Supreme Court and the Appellate division and found Grady has a case that can go to jury and let the jury decide if this baseball drill was unique and created dangers over and above the usual dangers of baseball.

Secky was not as fortunate. The drill did not unreasonably increase the risk of injury beyond that inherent in the sport of basketball.

Infant, negligent supervision, Slip and fall accident

Exculpatory Clauses

My son was injured at a birthday party while rock wall climbing. Before he began to climb, I signed a waiver which said I would not sue the party venue. But, my son appers to have injured his shoulder badly when he fell. Can I sue the party venue anyway?

The short answer is probably. General Obligations Law section 5-326 voids any agreement purporting to prevent lawsuits against venues that offer public amusement. Assuming that you paid a fee for your son to rock wall climb and you signed that waiver at the time you paid a fee, you can bring a claim against the owner of the facility.

But just because you can sue does not mean you will win a settlement. You still must show the rock wall climbing facility was at fault for your son’s accident. For example, if your son was hurt because the spotters holding the safety rope for your son was negligent, then you would have a claim. Similarly, you would have a claim if there was a malfunction with the safety rope or any other circumstance within the control of the rock wall climbing facility.

There may be other considerations for young children and high schoolers playing organized sports. The legal doctrine of assumption of risk may affect the ability to bring a successful claim. This issue was briefly addressed in a prior post concerning injuries at school and will be addressed in a future post in more detail.

Infant, Motor Vehicle Accidents, Trip and Fall Accidents

Children under the Law

“My son’s bike was damaged (but fortunately not my son) when a neighbor’s child had disingaged a parking brake on the family car and, since the car was a stick shift parked in nuetral, the car began to roll out of the neighbor’s driveway into the street, striking my son’s bike. Can I sue to get the bike fixed?”

The short answer is yes.  The best claim you have is against the owner of the car for negligent entrustment of the vehicle to a young child.  Even if the owner did not leave the car unlocked with a child alone in the car, so long as the owner left the keys in a location for the child to get to them, the owner would be responsible for safeguarding the vehicle.

In civil court, children under 4 cannot be charged with negligence  and children under 6 cannot be charged as violating the vehicle and traffic law. Although older children can be held liable for violating the vehicle and traffic law, children over 6 are only held to be responsible for laws they understand. Children over 4 could be negligent under the law, but their conduct is compared to “a reasonably prudent” child of the age of the child in question.