Osborne v. Olean Board of Education

Appellate Division of the Supreme Court of New York

Osborne v. Olean Board of Education

186 A.D.2d 1059, 588 N.Y.S.2d 489, 1992 N.Y. App. Div. LEXIS 11680

Appellate Division of the Supreme Court of the State of New York·Decided October 7, 1992·Published·Cited by 3 cases

Opinion

— Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: We agree with defendant School District that Supreme Court erred in failing to grant its motion for summary judgment dismissing plaintiff’s complaint. The infant, an 11-year-old boy, assumed the risk of being struck by a baseball when he "walked in front of’ or "between” his two friends, who were playing catch in an area outside the school that the infant attended. By placing himself between his friends, the infant put himself in danger of being struck by the ball (see, Sutfin v Scheuer, 74 NY2d 697, 698). In the circumstances of this case, the School District breached no duty to protect the infant (see, Marlowe v Rush-Henrietta Cent. School Dist., 167 AD2d 820, affd 78 NY2d 1096). (Appeal from Order of Supreme Court, Cattaraugus County, Sprague, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Pine, Fallon and Doerr, JJ.

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— Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: We agree with defendant School District that Supreme Court erred in failing to grant its motion for summary judgment dismissing plaintiff’s complaint. The infant, an 11-year-old boy, assumed the risk of being struck by a baseball when he "walked in front of’ or "between” his two friends, who were playing catch in an area outside the school that the infant attended. By placing himself between his friends, the infant put himself in danger of being struck by the ball (see, Sutfin v Scheuer, 74 NY2d 697, 698). In the circumstances of this case, the School District breached no duty to protect the infant (see, Marlowe v Rush-Henrietta Cent. School Dist., 167 AD2d 820, affd 78 NY2d 1096). (Appeal from Order of Supreme Court, Cattaraugus County, Sprague, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Pine, Fallon and Doerr, JJ.

Osborne v. Olean Board of Education, 186 A.D.2d 1059, 588 N.Y.S.2d 489, 1992 N.Y. App. Div. LEXIS 11680 (N.Y. Ct. App. 1992).

Pincite

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Opinion

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