TRAINER v. CAMP HADAR HATORAH

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Supreme Court, Appellate Division, Second Department, New York.

Tova TRAINER, etc., et al., Respondents, v. CAMP HADAR HATORAH, a/k/a Camp B'Nos Hadar Hatorah, et al., Appellants.

Decided: September 23, 2002

MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, HOWARD MILLER and REINALDO E. RIVERA, JJ. Marshall, Conway & Wright, P.C., New York, N.Y. (Steven L. Sonkin and Mitchell S. Kurtz of counsel), for appellants. Herschel Kulefsky (Ephrem Wertenteil, New York, NY, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Kings County (G. Aronin, J., on liability;  Schmidt, J., on damages), dated November 22, 2000, which, upon separate jury verdicts finding them negligent and awarding the plaintiff Tova Trainer damages in the sums of $375,000 for past pain and suffering and $125,000 for future pain and suffering, is in favor of the plaintiff Tova Trainer and against them.

 ORDERED that the judgment is modified, on the law, the facts, and as an exercise of discretion, by deleting the provision thereof awarding the plaintiffs the sum of $375,000 for past pain and suffering, and granting a new trial with respect thereto;  as so modified, the judgment is affirmed, with costs, unless within 30 days after service upon the plaintiffs of a copy of this decision and order the plaintiffs shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the sum of $375,000 to the sum of $200,000, and to the entry of an amended judgment in the principal sum of $325,000;  in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

The plaintiffs commenced this personal injury action to recover damages for injuries sustained by the infant plaintiff when she fell from a swing set at the defendants' camp.   The infant plaintiff, who was seven years old at the time of the accident, and some of her fellow campers were left unsupervised in the camp's playground while the remainder of the campers attended a prayer service.   The defendants contend that the infant plaintiff knew the risks of playing on the swing set and therefore assumed the risks associated with that activity.   They argue that the Supreme Court should have instructed the jury on assumption of risk.   We disagree.

 To establish that a plaintiff assumed the risk of engaging in an activity, a defendant must show that the plaintiff was aware of the defective or dangerous condition and the resultant risk (see Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Taylor v. Massapequa Intl. Little League, 261 A.D.2d 396, 689 N.Y.S.2d 523;  Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490).   While the doctrine has been applied to children under certain circumstances (see e.g. Auwarter v. Malverne Union Free School Dist., 274 A.D.2d 528, 715 N.Y.S.2d 852), there are certain risks that a child cannot reasonably be expected to perceive (see Roberts v. New York City Hous. Auth., 257 A.D.2d 550, 685 N.Y.S.2d 23).   Here, the defendants failed to present proof that the infant plaintiff fully appreciated the risks involved in playing on the swing set.   Therefore, the defendants' claim that the jury should have been instructed on assumption of risk are without merit.

However, the jury award of $375,000 for past pain and suffering deviates materially from what would be reasonable compensation and was excessive to the extent indicated herein (see CPLR 5501[c];  Giladov v. Kurzweil, 220 A.D.2d 481, 632 N.Y.S.2d 164;  Ashton v. Bobruitsky, 214 A.D.2d 630, 625 N.Y.S.2d 585;  Rivera v. State of New York, 205 A.D.2d 602, 613 N.Y.S.2d 253).

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