Judge Removes City from Assumption of Risk Suit, Leaves Board of Education

Dec 8, 2006

A New York state court has granted the City of New York’s motion for summary judgment in a case where a high school student named the City as a defendant after she was struck by a lacrosse ball.
The court ruled that the city was not a proper defendant for the plaintiff since the incident occurred on school property.
However, the court denied the Board of Education’s summary judgment motion, which had argued that the plaintiff assumed the risk of being injured by a lacrosse ball, even though she was practicing with the track team at the time.
The incident occurred on May 23, 2002 when plaintiff Alison Leung was practicing with her teammates on the track that encircles a multi-use sports field. After the injury, she sued the city and the board.
Both defendants moved to dismiss. The court wasted little time granting the city’s request, writing that “Since the incident occurred during an after-school practice, on high school property during an activity conducted under the auspices of the high school, it is clear that the City is not a proper defendant.”
The court reached a different solution on the board’s motion, finding that its “attempt to avoid liability by asserting that the student had assumed the risk of injury by participating in track practice is … without merit.
“The doctrine of assumption of risk provides that ‘by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ (see Sanchez v. City of New York, 25 A.D.3d 776, 808 N.Y.S.2d 422, quoting Morgan v. State of New York, 90 N.Y.2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421. Since there is no dispute that plaintiff was practicing with the track team rather than playing lacrosse when she was struck in the face, her injury should not be viewed as arising out of an inherent danger associated with or incident to her chosen sport. Accordingly, the Board’s reliance on the defense of assumption of risk is clearly misplaced (see Vogel v. Venetz, 278 A.D.2d 489, 718 N.Y.S.2d 396; accord Hawkes v. Catatonk Golf Club, 288 A.D.2d 528, 732 N.Y.S.2d 132).
“Likewise, the Board’s assertion that being struck in the face by a lacrosse ball was an open and obvious risk ‘attributable to the state of the track’ is without merit. This is not a situation analogous to that in which, e.g., a basketball player trips on a depression or crack in the paved surface of a basketball court (see Paone v. County of Suffolk, 251 A.D.2d 563, 674 N.Y.S.2d 761 accord; Gamble v. Town of Hempstead 281 A.D.2d 391, 721 N.Y.S.2d 385), or a baseball player slips on a wet or muddy field (see Maddox v. City of New York, 66 N.Y.2d 270, 487 N.E.2d 553, 496 N.Y.S.2d 726). In fact, even assuming that plaintiff was aware of a prior incident in which a non-player was struck by a lacrosse ball (see Movant’s Exhibit D, p 18), it is a question of fact for a jury to determine whether the aforesaid risk was fully comprehended by or perfectly obvious to the child (see Morgan v. State of New York, 90 N.Y.2d 471, 488-489, 685 N.E.2d 202, 662 N.Y.S.2d 421; see also Beroutsos v. Six Flags Theme Park, 185 Misc. 2d 557, 713 N.Y.S.2d 640 [S Ct NYCo 2000]).
“Finally, the Board has failed to establish as a matter of law that it may not be held liable for plaintiff’s injury. While schools are not the insurers of the safety of their students, they are under a duty to exercise the same degree of care as would a reasonably prudent parent placed in comparable circumstances (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 637 N.E.2d 263, 614 N.Y.S.2d 372). Whether the adequacy of supervision provided by the school was commensurate with that duty, and whether a breach of that duty was a proximate cause of the plaintiff’s injury are generally questions of fact for the jury (see Oakes v. Massena Cent School Dist,19 A.D.3d 981, 982, 797 N.Y.S.2d 640; Lindaman v. Vestal Cent School Dist, 12 A.D.3d 916, 917, 785 N.Y.S.2d 549).
“Here, there is a clear conflict between the testimony of the infant, who stated that she was aware of a prior similar incident, and the lacrosse coach, who stated that he was not. (see Movant’s Exhibit E, p 45). Additionally, while the Board’s reply affirmation purports to rely on the deposition testimony of Alan Blanc, the athletic director at Tottenville High School at the time in question, to demonstrate that there was no violation of any school policy or rule on the day that plaintiff was injured, his testimony, when viewed in the light most favorable to plaintiffs merely establishes a question of fact as to whether or not the coaches were on notice of the danger involved in having the lacrosse team on the field at the same time that the track team was practicing (see Plaintiffs’ Exhibit B, p 55). In fact, the City’s witness testified that he would not have allowed both teams to utilize the same field at the same time ( id. at 82).”
Alison Leung v. The City of New York, the Board of Education of the City of New York, Tottenville High School and Curtis High School; S. Ct. N.Y., Richmond Co.; 13155/02, 2006 NY Slip Op 51738U; 13 Misc. 3d 1208A; 2006 N.Y. Misc. LEXIS 2447; 9/15/06


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