Court Allows Suit Against Homeowners by Teen Injured After Jumping From Roof
New York Law Journal
December 12, 2011
Noting that a jury might find homeowners liable for creating “a zone of apparent danger” by fostering conditions that enticed a Long Island honors student to jump off their garage roof onto a trampoline, a judge has permitted a lawsuit filed by the teen, who was injured in the stunt, to proceed.
Ruling in Hallwood v. Daniels, 15462/09, Nassau County Supreme Court Justice Ute Wolff Lally (See Profile) denied the homeowners’ motion for summary judgment, turning aside their arguments that James Hallwood had voluntarily assumed the risk of his athletic pursuit.
On March 14, 2008, James, then 14, who also was on the track team, was horsing around with three friends in the backyard of the Rockville Centre home of Michele Daniels, the mother of one of the boys.
Ms. Daniels was home at the time when the teens decided to jump off her one-story garage onto a trampoline. All four used a nearby ladder to climb past a low fence onto the roof. Two of the boys had already executed the acrobatic feat on previous occasions. James had used the trampoline before but never from the garage roof.
A frightened James waited as his three friends took the plunge without incident. They told him that he did not have to jump, but he insisted. After his feet hit the trampoline, his jaw hit his knee, injuring his teeth and jaw.
Ms. Daniels, a school nurse, learned of the injury when the boys brought James then bleeding from the mouth into the house. She gave him ice. James’ attorney later noted that Ms. Daniels neither called for medical assistance nor contacted the teen’s parents.
James was required to get two crowns and teeth implants. Now a college freshman, he still has headaches from time to time.
The trampoline was thrown out the next day, said Cary Scott Goldinger, a Garden City solo practitioner who represents James and his mother, Judith.
James sued Ms. Daniels and her husband, Timothy, for unspecified damages in 2009. State Farm Insurance, their insurer, responded with a summary judgment motion saying James had voluntarily assumed the risk of injury.
The carrier annexed to its motion James’ school records, “which establish that on the date of the accident, March 14, 2008, plaintiff was a straight A student and, therefore, of sufficient intelligence to understand, appreciate and assume the inherent risk of injury posed by his voluntary jump from the garage roof onto the surface of the trampoline below.”
But Justice Lally said that there were questions of fact as to whether the Danielses could have done more to prevent the incident.
“The combination of the defendants being at home when the incident occurred and the close proximity of the trampoline to the one-story garage and ladder and/or low fence may have created a zone of apparent danger for which a jury may find the defendants to be liable,” the judge wrote.
Justice Lally distinguished between two versions of the assumption of risk: implied assumption of risk and primary assumption of risk.
She observed that implied assumption of risk is “akin to comparative negligence,” but she said that primary assumption of risk “is not a measure of plaintiff’s comparative fault, but a measure of the defendant’s duty of care.”
“Under the particular circumstance of this case where the infant-plaintiff jumped off the garage roof onto the trampoline, there are triable issues of fact as to whether the doctrine of the primary assumption of risk applies,” Justice Lally wrote.
The judge observed that “athletics and recreation enhance social values” even as they involve “significantly heightened risks.” Thus, the courts recognize that these risks may be voluntarily assumed, although this doctrine must be “closely circumscribed”
She added that a jury could find the primary assumption of risk does not apply in this case but still find the Danielses liable to some extent under the implied assumption of risk doctrine.
Mr. Goldinger, James’ attorney, said he was “very happy with the Šwell-written, on-point decision.” He added that the ruling “validates” his position that the Danielses had a responsibility “to protect and ensure [James’] safety.”
The Danielses are represented by Richard T. Lau & Associates in Jericho, an in-house counsel for State Farm Insurance. Mr. Lau declined to comment through a State Farm spokeswoman.
Ms. Daniels testified in a deposition that James came back to her house once or twice after the accident. On Oct. 5, 2008, she took him and five friends to the Bayshore House on her son’s birthday.
Ms. Daniels also recalled that she had had some sharp words for her son following James’ injury.
“I was just telling him how stupid it was to do something like that; that that was not a really smart thing to do, and people can get hurt doing that,” she said.
Date Added: 10/12/2012