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Second Department Limits Assumption of Risk Doctrine in Football Injury (NY)

AndyMilana

December 5, 2018 at 7:38:07 AM

In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/12/M.P.-v.-Mineola-Union-Free-School-District.pdf">M.P. v. Mineola Union Free School District</a></em>, the Second Department reversed a lower court decision granting summary judgment to the defendant. Plaintiff was a nine year old student who was playing touch football at recess and was injured when, going for a catch, he crashed into playground equipment.

The defendants argued that the infant plaintiff assumed the risk of playing football on a field adjacent to the playground equipment and that any negligent supervision was not the proximate cause of his injuries.  Defendant cited to plaintiff’s testimony that he plays in the area all the time at recess despite warnings to stay away from the school recess monitors.

The Second Department overturned the dismissal of the suit, because the school district failed to meet its burden in proving inherent risk, and failed to establish, prima facie, that its alleged negligent supervision in permitting the students to play football near the playground did not “create[ ] a dangerous condition over and above the usual dangers that are inherent in the sport.”

The Second Department ruled despite testimony from the plaintiff that he and his friends routinely disregarded the boundaries set by school employees for the playing area, and would play outside the designated boundaries on a portion of the field that was on the edge of an adjacent playground.

The Second Department also noted that plaintiff’s age (9 years old) was too young to “appreciate the risks involved” in playing  touch football.   We suspect there were recess monitors in the schoolyard -- possibly volunteers -- who "let it slide" when they saw the children playing football near the equipment.

If we might editorialize for a moment, this seems to us like a case where the “call on the field” was correct, and the appellate court opted to hold the school district to an unreasonably high standard.  Thanks to Paul Vitale for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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