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Assumption Of The Risk May Not Apply To Blind Seven Year Old Plaintiff Gymnast

September 25, 2008

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In McCarthy v. SPINS Gymnastics, a legally blind 7-year-old plaintiff was injured when he fell during his second attempt to vault over a pommel horse in defendant's gymnastics class. The defendant moved for summary judgment arguing that the doctrine of assumption of the risk applied because the infant-plaintiff voluntarily participated in the activity and assumed the risk of injury by engaging in the sport.
The Supreme Court, Suffolk County, denied defendant’s motion finding that there were issues of fact as to defendant’s supervision of plaintiff and placement of safety equipment. Considering the infant-plaintiff’s age, physical disability and inexperience with the exercise performed at the time of his accident, the court held it could not determine as a matter of law that the infant-plaintiff appreciated and voluntarily assumed the risks involved in the activity. That issue will be decided by the jury.
<a href="http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008SEP/5100187262004001SCIV.pdf">http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008SEP/5100187262004001SCIV.pdf</a>

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