Trainer v. Camp Hadar Hatorah

Sep 23, 2002
Versions:297 A.D.2d 731
748 N.Y.S.2d 386
748 N.Y.2d 386
2002 N.Y. App. Div. LEXIS 8686

*732The plaintiffs commenced this personal injury action to recover damages for injuries sustained by the infant plaintiff when she fell from a swing set at the defendants’ camp. The infant plaintiff, who was seven years old at the time of the accident, and some of her fellow campers were left unsupervised in the camp’s playground while the remainder of the campers attended a prayer service. The defendants contend that the infant plaintiff knew the risks of playing on the swing set and therefore assumed the risks associated with that activity. They argue that the Supreme Court should have instructed the jury on assumption of risk. We disagree.

To establish that a plaintiff assumed the risk of engaging in an activity, a defendant must show that the plaintiff was aware of the defective or dangerous condition and the resultant risk (see Morgan v State of New York, 90 NY2d 471; Taylor v Massapequa Intl. Little League, 261 AD2d 396; Lamey v Foley, 188 AD2d 157). While the doctrine has been applied to children under certain circumstances (see e.g. Auwarter v Malveme Union Free School Dist., 274 AD2d 528), there are certain risks that a child cannot reasonably be expected to perceive (see Roberts v New York City Hous. Auth., 257 AD2d 550). Here, the defendants failed to present proof that the infant plaintiff fully appreciated the risks involved in playing on the swing set. Therefore, the defendants’ claim that the jury should have been instructed on assumption of risk are without merit.

However, the jury award of $375,000 for past pain and suffering deviates materially from what would be reasonable compensation and was excessive to the extent indicated herein (see CPLR 5501 [c]; Giladov v Kurzweil, 220 AD2d 481; Ashton v Bobruitsky, 214 AD2d 630; Rivera v State of New York, 205 AD2d 602). Altman, J.P., Goldstein, H. Miller and Rivera, JJ., concur.