By: Basch & Keegan
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The Law Recognizes a Different Standard For Assumption of the Risk Among Children
As a general rule, the legal theory of “assumption of the risk” makes it more difficult to recover for any injuries you receive when you choose to do something dangerous. The rationale for this is that the participant understands that all risks of injury cannot ever be eliminated from some patently dangerous activities. One classic example that has recently encountered negative attention is that, if you attend a major league baseball game, you are implying that you understand the risks of injury from an errant ball or bat, and consent to taking that risk. Another fact in support of this defense is that, if companies that offered recreational activities that could result in harm were sued even when they took reasonable safety precautions, those companies would either not be able to buy insurance coverage, or the costs of insurance would make the activity too expensive for the average person to participate. However, when the defendant has either concealed an additional risk present in the activity that the victim wouldn’t have known about, or made the activity even more dangerous than it originally appeared to be, then a person injured by that dangerous activity may still have a claim for compensation for their injuries.
The rules change when the injured person was someone with a lower capability to understand the risk, either due to a developmental delay or due to age. Children are not expected to be able to always understand the risks inherent in dangerous activities, as their brains simply aren’t as able to predict how dangerous an activity is, nor understand possible bad outcomes from dangerous behavior. In the state of New York, additional protections exist for children injured when doing something risky. If a child is injured by doing something dangerous where there is an adult responsible for that child’s safety, that adult may be liable for the child’s injuries. In a precedent-setting New York case, Trupia v. Lake George Central School District, a child at a school district-operated camp was sliding down a bannister when he fell and was seriously injured. The court found that, since the child was in the care of adults who were responsible for his safety, those adults had a duty to try to intervene where a child was doing something highly dangerous.
A recent case tried by Basch & Keegan attorney John DeGasperis resulted in a win for an injured child. In this case, a 12-year-old girl was hurt when the defendant permitted the girl to play without supervision on a trampoline, while also ignoring manufacturer’s warnings about how the trampoline should be used. In obtaining a victory for his young client, John was required to show that the doctrine of “assumption of the risk” did not keep his young client from being compensated for her injuries.
If you or a loved one have been injured in Ulster County by an unsafe condition or an activity made more dangerous by another’s negligence, contact the Kingston personal injury law firm Basch & Keegan LLP for a free consultation at (845) 338-8884.