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PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT).

The Fourth Department determined plaintiff lacrosse player’s action was not barred by a waiver or the doctrine of assumption of the risk. Plaintiff was in a ground ball drill when a coach through a ball at her head, injuring her. The coach’s act was arguably grossly negligent, reckless or intentional, and therefore not covered by the waiver or the doctrine of assumption of the risk:

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Here, plaintiff’s complaint and affidavit include allegations that the actions of defendants were grossly negligent and extremely reckless. Contrary to defendants’ contention, the written waiver does not bar plaintiff’s action inasmuch as a waiver is not enforceable with respect to allegations of grossly negligent conduct … .

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… [I]t is well settled that a person who voluntarily participates in a recreational activity such as lacrosse “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”… . “Such a person, however, will not assume the risks of reckless or intentional conduct, nor will a claim be barred where the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent’ in the activity” … . Tauro v Gait, 2018 NY Slip Op 00952, Fourth Dept 2-9-18

NEGLIGENCE (PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))/ASSUMPTION OF RISK  (PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT)/WAIVER (LACROSSE INJURY, PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))/LACROSSE (ASSUMPTION OF THE RISK, PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT))

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THE QUALIFIED DOMESTIC RELATION ORDER (QDRO) AS DESCRIBED IN THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE CANNOT BE MODIFIED BY THE COURT; NO APPEAL LIES OF RIGHT FROM A QDRO, AN APPLICATION FOR LEAVE TO APPEAL MUST BE MADE (FOURTH DEPT).
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BECAUSE THE PLEA AGREEMENT COULD NO LONGER BE COMPLIED WITH DEFENDANT’S GUILTY PLEA MUST BE VACATED; UNDER THE AGREEMENT DEFENDANT’S SENTENCE WAS TO RUN CONCURRENTLY WITH THE SENTENCE ON A SEPARATE INDICTMENT, BUT THAT SEPARATE INDICTMENT WAS DISMISSED AFTER APPEAL (FOURTH DEPT). ​
MOTHER DEMONSTRATED CHANGE IN CIRCUMSTANCES RELATED TO EXCESSIVE PUNISHMENT BY HUSBAND; FAMILY COURT REVERSED, CUSTODY AWARDED TO MOTHER.
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