FRANCO v. NEGLIA (2004)

Appeal by defendants from so much of an order of the Civil Court, Kings County (A. Schack, J.), entered December 11, 2002, as denied their motion for summary judgment.   Order unanimously affirmed without costs.

In this action to recover for personal injuries, the infant plaintiff testified at his examination before trial that on his first day of kick-boxing class at defendants' martial arts academy, he was placed in an advanced class and paired up with an experienced partner who flipped or threw him onto the ground causing him to sustain a broken toe.   Defendants moved for summary judgment arguing that the infant plaintiff signed a release which precluded the instant action and, in any event, he assumed the risk of participating in the activity.   Defendants argued that according to the deposition testimony of defendant Neglia, the owner of the martial arts academy, plaintiff was not paired up on the first day of class and was injured when he tripped over his own feet.

 It is well settled that infants are not bound by releases or waivers which exculpate defendants from liability for causes of action to recover damages for personal injuries since they lack the capacity to enter into such agreements (see Kaufman v. American Youth Hostels, 6 A.D.2d 223, 177 N.Y.S.2d 587 [1958];  People ex rel. Bymes v. Goldman, 59 Misc.2d 570, 302 N.Y.S.2d 926 [1969] ).   Accordingly, the release signed by the 14-year-old plaintiff is unenforceable without regard to whether it would be void pursuant to General Obligations Law § 5-326, a question we do not reach.

 While a novice may comprehend the risks associated with certain sports, where the novice has received limited preparation regarding the sport, it cannot be said that the risks to which he was to be exposed were “known, apparent or reasonably foreseeable” to him (see Petretti v. Jefferson Val. Racquet Club, 246 A.D.2d 583, 585, 668 N.Y.S.2d 221 [1998];  Deangelis v. Izzo, 192 A.D.2d 823, 824, 596 N.Y.S.2d 560 [1993] ).   In light of the foregoing, we are of the opinion that questions of fact exist as to how plaintiff was injured, whether the risk of injury which plaintiff was to be exposed to by participating in this activity was known, apparent or reasonably foreseeable to him and whether the defendants exercised reasonable care to protect plaintiff from “unassumed, concealed or unreasonably increased risks” (Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 541 N.E.2d 29 [1989] ).   Accordingly, the lower court properly denied defendants' motion for summary judgment.

We are cognizant of the fact that courts have awarded summary judgment in favor of defendants finding that the plaintiff assumed the risk in participating in karate activities (see Beck v. Scimeca, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997];  Chimerine v. World Champion John Chung Tae Kwon Do Inst., 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997];  Sanperi v. Junsch, 274 A.D.2d 462, 711 N.Y.S.2d 32 [2000];  Vendura v. Fasano, 236 A.D.2d 465, 653 N.Y.S.2d 144 [1997] ).   However, we note that these cases are clearly distinguishable from the case at hand in that the plaintiffs therein were either experienced in the art of karate or the risk of injury was obvious and reasonably foreseeable.