31 A.D.2d 884 | N.Y. App. Div. | 1969
Judgment unanimously reversed on the law and facts, without costs, and complaint dismissed. Memorandum: Injuries to plaintiff Ralph Ruggerio, .age 17 were sustained in a fight with the defendant Schmidt in a high school looker room, and the plaintiffs allege negligence -on the part of the Board of Education in failing to provide proper supervision. Prom the testimony of -the plaintiff himself and all the proof in the case taken in a- light most favorable to the plaintiff it appears that these two high school seniors after three years’ participation in the gym program at Jamestown High School and an association together as teammates in the varsity sports program were familiar with the rules of the school governing conduct in the 1-oeker room, that they both knew they were not supposed to fight in the locker rooms, and that following a three or four minute argument over the use of ian unassigned locker, each of them, the plaintiff and defendant Schmidt, indicated to the other, that he was disposed to “make something of it” and deliberately prepared for a fight in .the immediate presence of the other. Under such circumstances each invited and could certainly readily foresee the blows that followed, one of which caused the injury of which plaintiff complains. The plaintiff as a participant in .the entire occurrence and in view of his age and experience was in a position to understand and evaluate the .consequences of his own and the defendant’s conduct and voluntarily chose to expose himself to the dangers of a fist fight by •taking off his glasses and coat, moving out to a more suitable location and .threatening defendant by squaring off with him. The plaintiff could have secured the intervention at -any time of the instructor who was readily available ■in -his office off the locker room but instead elected a physical confrontation with defendant without regard for .the risk of injury, which followed as a consequence immediately thereafter. Plaintiff’s conduct, demonstrating a lack of reasonable regard for his .own safety, was a direct cause of the incident resulting in his injury and, as such, defeats his right .of recovery ‘against the defendant Board of Education. (Appeal from judgment of Chautauqua Trial Term, in a negligence action.) Present—Del Veechio, J. P., Marsh, Witmer, Gabrielli and Henry, JJ.
