Tobin v. Hewlett Branch Athletes, Inc.

In an action to recover damages for personal injuries sustained by the infant respondent, and by his father for medical expenses, the appeal is from a judgment of the County Court, Nassau County, entered on a jury verdict in favor of the infant for $3,000 and in favor of his father for $325. Judgment reversed on the law and the facts, without costs, and complaint dismissed. The infant respondent was one of a group of approximately 20 children, in the age bracket of 6 to 8 years, who were playing a game at appellant’s day camp under the supervision of a junior counselor. The game consisted of the counselor tossing a ball at the group, and the children trying to avoid being struck by the ball. The infant respondent jumped into the air to avoid the ball, but his feet came into contact with the ball and he fell, sustaining the injuries complained of. It was not claimed that the ball was thrown with excessive force or speed. The game had been played for a number of years; the infant respondent had frequently engaged in and enjoyed the game and was adept in playing it. In our opinion, the game was so innocuous that it could not reasonably have been foreseen that a child playing- it could be injured by the usual activity involved therein. If we were not dismissing the complaint, we would order a new trial on the grounds that the verdict was against the weight of the evidence and was excessive, and that the trial court erred in permitting a dentist to testify 759 that a certain physical condition “ may ” result, as a “ possibility ”, from the injuries (Gleason v. Hudson Val. Ry. Co., 143 App. Div. 884, 885-886). Nolan, P. J., Wenzel, Beldoek, Hallinan and Kleinfeld, JJ., concur.