Supreme Court, Wayne County — Assumption of Risk: Zerniak v. Davis

Supreme Court, Wayne County

Assumption of Risk

Negligent Entrustment with a Dangerous Instrumentality

Zerniak v. Davis
71034
Justice Kehoe

Background: The action arose from an incident that occurred at the residence own by the defendant. The plaintiff, a minor child, had participated in a game involving the use of paintball guns while the defendant was not home. During the course of the game, the plaintiff’s right eye was injured. The plaintiff brought two causes of action: (1) premises liability; and (2) negligent entrustment of a dangerous instrument. The plaintiff moved to amend her complaint by adding a third cause of action for negligence. The defendant has cross-moved seeking to dismiss all claims as barred by the doctrine of assumption of the risk.

Ruling: The plaintiff’s first and second causes of action were dismissed, but the plaintiff was directed to file and serve a supplemental summons and amended complaint stating a cause of negligence against three new defendants. The court found that primary assumption of risk did not bar the action in light of the circumstances, given the plaintiff’s lack of experience, skill and background. The plaintiff had declined to move forward on its first cause of action and the court dismissed the second as there was no evidence that the defendant parent was aware or had control of the dangerous instrumentalities. The court also dismissed the proposed third cause of action against the defendant.

William G. Bauer of Woods Oviatt Gilman LLP for the plaintiff; Alison M.K. Lee of Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC for the defendant