The Second Department determined defendants did not eliminate questions of fact whether infant defendant intentionally pushed infant plaintiff to the ground during a kickball game. The battery cause of action was therefore not precluded (as a matter of law) by the doctrine of assumption of the risk:
“To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . Contrary to the appellants’ contention, they failed to eliminate triable issues of fact as to whether the bodily contact between the infant defendant and the infant plaintiff was intentional or offensive … . The appellants also failed to establish, prima facie, that the complaint was barred by the doctrine of primary assumption of the risk. While a participant in a sporting activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation, the participant is not deemed to have assumed risks resulting from the reckless or intentional conduct of others … . Dimisa v Oceanside Union Free Sch. Dist., 2016 NY Slip Op 04172, 2nd Dept 6-1-16
INTENTIONAL TORTS (BATTERY CAUSE OF ACTION STEMMING FROM KICKBALL GAME SURVIVED SUMMARY JUDGMENT, ASSUMPTION OF RISK DOCTRINE DID NOT PRECLUDE ACTION AS A MATTER OF LAW)/BATTERY (BATTERY CAUSE OF ACTION STEMMING FROM KICKBALL GAME SURVIVED SUMMARY JUDGMENT, ASSUMPTION OF RISK DOCTRINE DID NOT PRECLUDE ACTION AS A MATTER OF LAW)/ASSUMPTION OF RISK (BATTERY CAUSE OF ACTION STEMMING FROM KICKBALL GAME SURVIVED SUMMARY JUDGMENT, ASSUMPTION OF RISK DOCTRINE DID NOT PRECLUDE ACTION AS A MATTER OF LAW)