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First Department Finds Nine-Year-Old Cannot Assume Risk

May 25, 2011

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In <em>Smith v. City of New York</em>, the First Department reversed the trial
court’s granting of summary judgment in the case of a nine-year old boy whom
broke his arm after falling from monkey bars during a City-run summer
Depositions revealed that campers were not allowed on the monkey
bars, but the boy told his counselor, who was supervising a nearby basketball
game, that he was going to play on the monkey bars. At his deposition, the boy
gave contradicting testimony regarding his awareness of the dangers of playing
on monkey bars, stating at one point that he knew of the dangers due to a
previous monkey bar accident, and stating at another point that he did not think
he could get hurt.
Because of the contradictory testimony, the Appellate
Division, First Department found that the boy did not fully appreciate the risks
of his activity, and as such, could not have assumed the risk that his counselor
would not supervise him.
Thanks to Alex Niederman for his contribution to
this post.
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