Court Concludes It’s Too Early To Render Judgment in Assumption of Risk Case

Aug 31, 2007

A state court judge in New York has denied the pre-trial motions of both a plaintiff and his defendants in an assumption of risk case, finding that too many questions remain about the veracity of the plaintiff’s claim.
The impetus for the litigation was an accident that occurred on May 30, 2002, when then-infant plaintiff, Mohammad S. Islam, was bumped to the ground at a roller skating rink operated by one of the defendants, Empire Roller Skating Center. The plaintiff was at the rink as part of a “field trip” organized by the co-defendants City of New York and Board of Education.
The plaintiff sued, alleging separate causes of action for negligence against the City and Empire, on behalf of the infant plaintiff, and a derivative claim for loss of services on behalf of his parents. For the most part, the same allegations of negligent act or omission appear for all Defendants; specifically, that they were:
“(N)egligent, careless and reckless in failing to properly, and adequately supervise the 10 year old minor plaintiff; in permitting plaintiff to skate for the very first time in his life without any safety equipment including standard issue wrist guards; in failing to provide plaintiff with the proper instructions and lessons in the use of roller skates; in failing to explain and warn plaintiff’s parents of the risks associated with roller skating, including fractures to the extremities, prior to obtaining their permission for their son to attend such risky endeavors; in failing to hire, retain, train and employ teachers, agents, servants and employees who are sufficiently competent and experienced in supervising its pupils, including minor plaintiff herein; in waiting 3 hours before rendering any medical care to the minor plaintiff; and in otherwise being careless and negligent at the time and place of incident.” An additional allegation appears as to Empire, that it “fail[ed] to supervise and remove reckless skaters from the rink prior to causing any harm to neophyte skaters.”
Early in discovery, both parties filed motions — Empire and the City for summary judgment dismissing the complaint and the plaintiffs for “partial summary judgment on the issue of liability.”
In denying the defendants’ motion, the court wrote that “neither Empire or the City makes any showing that it is entitled to judgment as a matter of law on the alleged failure to provide safety equipment and ‘in waiting 3 hours before rendering any medical care,’ and any possible liability on these grounds would not be avoided by contentions as to assumption of risk or lack of proximate cause, which are the primary focus of the defendants’ respective motions.”
At the same time, the court noted that the “infant plaintiff’s father apparently signed a document that authorized the school to take his son to the Empire facility, and that the terms of such a document could be highly material to an assessment for purposes of an assumption of risk defense. For reasons that escape the Court, none of the parties submits a copy of the document on these motions, although, from the deposition transcripts, a copy is obviously available. The Court cannot assume that the document would assist any of the parties, and, indeed, will take adverse inferences against all of them. (See 1A New York Pattern Jury Instructions, Civil, 1:77 [2007].)”
Thus, the court denied all pre-trial motions.
Mohammad S. Islam et al. v. City of New York; Sup. Ct. N.Y., Kings Co.; 49928/02, 2007 NY Slip Op 51224U; 16 Misc. 3d 1102A; 2007 N.Y. Misc. LEXIS 4312; 6/18/07
Attorneys of Record: (for plaintiffs) Michael W. Gunzburg, Esq. (for defendants) Beth S. Gereg, Esq. and Tzipora E. Teichman, Esq. of the Corporation Counsel of the City of New York.


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