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Deegan v. St. Patrick's Church at W. Neck; Derek Hewitt v. NY 70th Street LLC, Et Al. (NYLJ 1/14/20)

Plaintiff, a fifth grader, claimed he was injured when he fell while playing touch football in a parking lot during a school recess. However, he could not identify the cause of his fall. Nevertheless, he claimed defendant negligently maintained the premises and permitted a dangerous condition to exist. Defendant argued plaintiff assumed the risk of playing. Plaintiff countered a 10 year old could not assume a risk where risks were unreasonably increased.

Belgian blocks were laid in the area where plaintiff was playing. There were 80-120 children playing in the parking lot during the recess.

Schools are under a duty to adequately supervise the students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. While schools are not insurers of safety, they are obligated to exercise such care of their students as a parent of ordinary prudence would observe in similar circumstances. Nonetheless, they cannot reasonably be expected continuously to supervise and control all movements and activities of students. (Citations omitted).

“Further, it is well settled 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 [or activity] and flow from such participation”. The primary assumption of risk doctrine does not confer an absolute defense to liability but serves to measure the duty of care owed by the defendant. Under the doctrine, a “plaintiff will be barred from recovering damages for injuries sustained during a voluntary athletic or recreational activity if it is established that the injury-causing conduct, event or condition was known, apparent or reasonably foreseeable” (see Morgan v. State of New York, supra; Maddox v. City of New York, 66 NY2d 270, 496 NYS 2d 726 [1985]). Participants in sports or recreational activities, however, “are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” (Custodi v. Town of Amherst, 20 NY3d 83, 88 [2012]; see Morgan v. State of New York, supra; Mussara v. Mega Funworks, Inc., 100 AD3d 185, 952 NYS2d 568 [2d Dept 2012].

The Court found triable issues of fact as to whether adequate supervision was provided and whether the accident was foreseeable given the Belgian blocks in the recess playing area.

Indeed, the Court seemed more concerned about the adequate supervision. Regardless, both issues were left to the jury to resolve.


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