Gunshot Victim

In Kelly v. Norgate Business Associates, a case that originated in the Bronx Supreme Court and went up on appeal, a gunshot victim was able to proceed to a jury trial in his action to recover damages against the building owner and its security company after he was shot in an apartment building lobby. The victim was visiting a friend in the building. When he entered he found the locks broken and the security guard never asked him to sign in. There was a group of 10 to 12 men in the lobby near the guard. When the victim left the the building, a fight broke out and the victim was shot, while the guard did nothing but call police only after shots were fired. The Appellate Division ruled that the victim may recover as a third-party intended beneficiary of the security contract between the building owner and the security company where there was evidence that security officers were to safeguard lives and not just property. It also noted the building owner may also be found liable as a jury may find the assailant was an intruder who entered and exited the building through the broken doors. www.foleygriffin.com

Playground Injury by Child

On September 7, 2004, the eight-year-old plaintiff was injured at a playground on the New York City Housing Authority's premises when she climbed on an inverted fish tank and the glass broke, causing injuries to her leg. The child's mother testified that the fish tank had not been in the playground the day before, but that it was there when she and the plaintiff arrived late in the afternoon or evening on the day of the accident. Other evidence was offered to show that the fish tank had been in a "drop area" adjacent to the playground for one or two weeks and that a child dragged it into the playground when the plaintiff arrived on the day of the accident. The defendant moved for summary judgment dismissing the complaint. The Court refused to dismiss the case. http://www.foleygriffin.com/

Assumption of Risk

The doctrine of Assumption of Risk is often used by the courts to dismiss lawsuits where the injured party had knowledge of the injury causing defect and an appreciation of the resulting risk. Nassau County Supreme Court Justice Thomas Feinman was faced with this issue recently in the case of Berman v. Rolling River Associates Ltd. On March 17, 2008, the judge denied the defendant camp's motion for summary judgment dismissing a child's lawsuit to recover for the injuries suffered at a gymnastics class when she fell and broke her elbow. The claim was that the 7-year-old stepped directly on an apparatus that rolled over causing her to lose her balance and fall. The child's parent argued that there were no instructors at the apparatus, while defendants argued they provided adequate supervision. Defendants argued assumption of the risk in that the child consented to engage in the activity, thus consented to the inherent risk. The judge disagreed, stating it could not be determined that this child, participating in a gymnastics class for the first time, appreciated the risks associated with the apparatus. It noted plaintiff did not appreciate the risk given her age and level of experience, thus the doctrine of assumption of risk did not provide a bar to recovery. www.foleygriffin.com