PACELLA v. East Meadow Union Free School District, third-party defendant-respondent. (1999)

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Nassau County (Roberto, J.), entered April 7, 1998, which denied his motion for summary judgment dismissing the complaint and granted the cross motion of the third-party defendant for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 The Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint.   There are issues of fact as to whether his actions were reasonable, as judged by the level of reasonable conduct to be expected from a child of like age, intelligence, and experience (see, Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254;  Verni v. Johnson, 295 N.Y. 436, 68 N.E.2d 431;  Camardo v. New York State Rys., 247 N.Y. 111, 159 N.E. 879;   Zapata v. City of New York, 96 A.D.2d 779, 465 N.Y.S.2d 729;  Egan v. Tambone, 81 A.D.2d 604, 437 N.Y.S.2d 713).

 Moreover, the injured plaintiff's predisposition to injury due to his genetic connective tissue disorder does not absolve the appellant of liability as a matter of law.  “It is a familiar tort doctrine that one who is negligent is chargeable for all of the harm that the negligent act causes, even if the injuries are activated or exacerbated by a preexisting vulnerability or condition” (Martin v. Volvo Cars of N. Am., 241 A.D.2d 941, 943, 661 N.Y.S.2d 338).

 Finally, the Supreme Court correctly dismissed the third-party complaint.   The infant plaintiff's physician informed the third-party defendant that the infant plaintiff was free to engage in all activities, including athletics.   Accordingly, the appellant failed to submit any evidence indicating that the third-party defendant failed to “exercis[e] ordinary reasonable care in protecting the plaintiff from unassumed, concealed or unreasonably increased risks” by allowing him to participate in outdoor recess (see generally, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Edelson v. Uniondale Union Free School Dist., 219 A.D.2d 614, 631 N.Y.S.2d 391;  Baker v. Briarcliff School Dist., 205 A.D.2d 652, 613 N.Y.S.2d 660).

MEMORANDUM BY THE COURT.