You are here: / / BATTERY CAUSE OF ACTION STEMMING FROM KICKBALL GAME SURVIVED SUMMARY JUDGMENT,...

BATTERY CAUSE OF ACTION STEMMING FROM KICKBALL GAME SURVIVED SUMMARY JUDGMENT, ASSUMPTION OF RISK DOCTRINE DID NOT PRECLUDE ACTION AS A MATTER OF LAW.

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)

You might also like
THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).
Son of Sam Law Required Murderer’s Police Pension Be Paid to Daughter and Estate of the Murder Victim
Child Should Have Been Placed with Grandmother—Placement Criteria Explained
PLAINTIFF WAS INJURED WHEN AN UNPROTECTED TRENCH CAVED IN AND COLLAPSED; THE ABSENCE OF ANY SAFETY DEVICES, LIKE A SAFETY RAILING, VIOLATED LABOR LAW 240(1) AND 241(6) (SECOND DEPT).
Expert’s Affidavit Should Have Been Considered in Summary Judgment Motion Even though Expert Had Not Been Disclosed​
Tax Exempt Status of Non-Profit Public Parking Lots Should Not Have Been Revoked
A DEFENDANT CAN NOT BE CONVICTED OF BOTH FORGERY AND POSSESSION OF A FORGED INSTRUMENT WITH RESPECT TO THE SAME FORGED INSTRUMENT (SECOND DEPT).
EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS EVEN IF NOT SPECIFICALLY MENTIONED IN THE DEED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TOWN DID NOT DEMONSTRATE PREPAYMENT BEFORE RETRIEVING PAPER DOCUMENTS WAS ... ABSENCE OF SAFETY RAIL ON SCAFFOLDING ENTITLED PLAINTIFF TO SUMMARY JUDGMENT...