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NY App. Div. Finds Pre-Teen Plaintiff Created Risk With Unintended Use Of Stretching Bar

January 7, 2010

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In <i>Osorio v. Thomas Balsley Assoc</i>., the 12-year-old plaintiff was injured when he climbed onto a stretching bar in the adult fitness area of a municipally-owned park while playing a game of tag and fell over an adjacent perimeter fence dropping approximately nine feet to the sidewalk outside the park. The defendant moved for summary judgment arguing assumption of risk. In dismissing the matter, the appellate court focused on the plaintiff’s creation of the dangerous risk, as opposed to whether or not he assumed the risk in participating in the game of tag. Specifically, the court held that the plaintiff was the sole proximate cause of his injuries because it was his voluntary decision to use the stretching bar for climbing, as opposed to its intended use. Moreover, without any evidence of prior incidents involving the stretching bar’s improper use, the court held that the danger was not foreseeable to the defendant.
Thanks to Lora Gleicher for her contribution to this post.
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