United States District Court, W.D. New York
BRYAN DiFRANCESCO as father and natural guardian of the infant minor, LD, Plaintiffs,
WIN-SUM SKI CORP., HOLIDAY VALLEY, INC., Defendants.
Hugh B. Scott, United States Magistrate Judge
parties then consented to proceed before the undersigned as
Magistrate Judge, including presiding over a jury trial
(Docket No. 37). Presently before the Court are the
parties' first round of motions in limine in preparation
for a jury trial. Defendants first submitted their motion in
limine (Docket No. 53). Plaintiffs' then filed their
motion in limine (Docket No. 56). Defendants then
supplemented their motion in limine (Docket No. 58). As
scheduled in the Final Pretrial Order (Docket No. 40), these
initial motions in limine were due by January 3, 2017
(id.), later extended at the parties' request to
January 6, 2017 (Docket No. 42); responses initially were due
by January 17, 2017, and they were to be argued with the
Final Pretrial Conference on January 18, 2017, and then be
deemed submitted (Docket No. 40). Responses to these motions
were postponed then and were due by February 3, 2017 (Docket
No. 63), which defendants submitted (Docket No. 65) and
plaintiffs submitted (Docket No. 66); and reply by February
10, 2017 (Docket No. 63), which defendants submitted (Docket
No. 67) and plaintiffs submitted (Docket No. 68); and
argument was held on February 16, 2017 (Docket Nos. 63, 69
(minutes)). These motions were deemed submitted at the
conclusion of oral argument. During that argument, scheduling
for the Pretrial Conference and jury selection and trial were
discussed with the trial reset for July 17, 2017 (Docket No.
69; see Docket Nos. 70, 71). The jury selection and
trial of this case was scheduled for February 1, 2017 (Docket
No. 40, Final Pretrial Order), but was later adjourned
(Docket Nos. 63, 64).
this Court addressed plaintiffs' motion for a protective
Order and to quash two subpoenas (Docket Nos. 43 (motion),
70, Order of February 22, 2017), familiarity with which is
a diversity personal injury action. Plaintiffs are a Canadian
father and daughter, while defendants are New York
corporations which operate Holiday Valley. Plaintiff LD
(hereinafter “LD, ” cf. Fed.R.Civ.P.
5.2) was a five-year-old in 2010 who skied at Holiday Valley.
Plaintiffs allege that LD was injured falling when from a
chairlift at Holiday Valley (Docket No. 1, Compl.;
see Docket No. 43, Pls. Atty. Decl. ¶ 3, Ex.
to plaintiffs' earlier motion, LD was participating in a
ski lesson at Holiday Valley on February 15, 2010, under the
supervision of defendants' employee, a ski instructor,
when she fell from the chairlift sustaining injuries to her
left leg and left hip. Plaintiffs allege negligent
instruction and supervision during the course of that lesson
resulting in LD's fall. (Docket No. 43, Pls. Atty. Decl.
¶¶ 3, 9, Ex. E; see id., Pls. Memo. at
Scheduling Order (after extensions, see Docket Nos.
14-15, 20, 23, 25, 27) in this case had discovery conclude on
April 30, 2015 (Docket No. 27; see Docket No. 43,
Pls. Atty. Decl. Ex. D). No motions to compel were filed and
the parties reported on October 5, 2015, readiness for trial
(Docket No. 30). Plaintiffs' motion to quash subpoenas
and for a protective Order led to the parties exchanging
supplemental discovery, which was to be completed by April 5,
2017 (Docket No. 70, Order of Feb. 22, 2017, at 21, 22).
Defendants' First Motion in Limine (Docket No.
to the Final Pretrial Order (Docket No. 40), defendants filed
their motion in limine, seeking preclusion of portions of the
opinions of plaintiffs' expert, Dick Penniman; evidence
of defendants' subsequent remediation; and evidence of
prior and subsequent incidents similar to the accident at
issue (Docket No. 53). Plaintiffs' response and
defendants' reply will be addressed below at each
particular item. Plaintiffs' Motion in Limine (Docket
also filed their timely motion in limine (Docket No. 56),
seeking to preclude evidence that infant LD assumed the risk
of riding the chairlift, evidence from LD's injury at
Holimont in 2015, and evidence of a disclaimer that
plaintiffs argue is against public policy (id.).
argue that plaintiffs' motion in limine is in fact an
untimely motion for summary judgment and that issues of fact
exist, hence there is no basis to preclude evidence as to
plaintiffs' assumption of the risk or comparative
negligence (Docket No. 65, Defs. Memo. at 5-6). They contend
that the registration form with the release signed by
LD's uncle is admissible because the release tracks the
“Warning to Skiers” required by New York General
Obligations Law § 18-106(1)(a) and regulations under 12
N.Y.C.R.R. § 54.5(l)(1) (id. at 7).
They fault plaintiffs for not addressing Vanderwall v.
Troser Management, Inc., 244 A.D.2d 982, 665 N.Y.S.2d
492 (4th Dep't 1997), leave to appeal
denied, 91 N.Y.2d 811, 671 N.Y.S.2d 714 (1998)
(id.). That case charged the jury there with express
assumption of the risk for exposure to drainage ditches even
though those risks were not enumerated in “Warning to
Skiers, ” Vanderwall, supra, 244
A.D.2d at 982, 665 N.Y.S.2d at 493 (id.).
Defendants' Supplemental Motion in Limine (Docket No.
later supplemented their motion in limine seeking preclusion
of undisclosed expert testimony and to limit as expert
testimony from LD's parents as to her treatment (both
past and future) and LD's physical therapist testifying
as to causation and diagnosis (Docket No. 58).
respond that they did provide disclosure of future medical
expenses; alternatively, they contend that defendants waived
any objection to an omitted response by not moving to compel
or for preclusion (Docket No. 66, Pls. Memo. at 16-18).
oral argument of plaintiffs' motion for a protective
Order and to quash the two subpoenas (Docket No. 69), the
parties submitted on their respective papers for these
motions in limine (id.). They also discussed the
need to supplement their disclosure, especially LD's
future medical treatment and needs (id.).
diversity jurisdiction action, this Court initially must
apply the substantive law of our forum state, New York,
see Erie R.R. v. Tompkins, 304 U.S. 64 (1983);
Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 116 n.4
(2d Cir. 2002), including its choice of law regime,
Klaxon v. Stentor, 313 U.S. 487 (1941). This Court
has to apply New York law as construed by the highest court
of the state, the New York State Court of Appeals, not the
local intermediate appellate court. When the New York State
Court of Appeals has not ruled on the particular question,
this Court then has to predict the direction the Court of
Appeals would go if given that issue, see Gasperini v.
Center for Humanities, Inc., 66 F.3d 427, 430 (2d Cir.
personal injury actions, New York generally applies the law
of the jurisdiction in which the injury occurred. See
Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 595
N.Y.S.2d 919 (1993); Neumeier v. Kuehner, 31 N.Y.2d
121, 335 N.Y.S.2d 64 (1972). “New York's current
choice-of-law rules require the court to consider the
following three elements: the domicile of the plaintiff, the
domicile of the defendant, and the place where the injury
occurred.” Lucas v. Lalime, 998 F.Supp. 263,
267 (W.D.N.Y. 1998) (Heckman, Mag. J., R&R, adopted by
Arcara, J.). Where more than one element is in the same
state, that state's law should apply. Id.;
Datskow v. Teledyne Continental Motors, 807 F.Supp.
941, 943 (W.D.N.Y. 1992) (Larimer, J.). Under these choice of
law rules “the first step in any case presenting a
potential choice of law is to determine whether there is an
actual conflict between the laws of the jurisdiction
involved.” Matter of Allstate Ins. Co.
(Stolarz), 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 905
the accident and defendants are in New York, plaintiffs are
from Ontario. As a second Neumeier situation, New York law
would apply, Neumeier, supra, 31 N.Y.2d at
128, 335 N.Y.S.2d at 70; Cooney v. Osgood Machinery,
Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 922 (1993)
(conduct-regulating laws, the law of the jurisdiction where
the tort occurs applies while loss allocation laws have
additional factors to determine which jurisdiction applies,
citations omitted). In addition, the parties in effect have
stipulated to apply forum (New York) law to this case. Both
sides cite New York law and made no reference to any other
jurisdiction's law having application. Neither side has
presented any law that conflict with New York law. New York
courts enforce stipulations to choice of law, see
Hamilton v. Accu-Tek, 47 F.Supp.2d 330, 343 (E.D.N.Y.
1999) (citing, among other cases, Tehran-Berkeley Civil
& Envtl. Eng'rs v.
Tippetts-Abett-McCarthy-Stratton, 888 F.2d 239, 242 (2d
Cir. 1989) (parties briefed New York law, court applies New
York law based upon implied consent of parties));
Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832,
834 n.2 (2d Cir. 1967) (Friendly, J.); Klein v. Jostens,
Inc., No. 83 Civ. 5351, 1985 U.S. Dist. LEXIS 18115, at
*6 n.1 (S.D.N.Y. July 9, 1985). As a result New York law
applies and the legal issues surrounding these evidentiary
disputes will be resolved under New York law.
Plaintiffs' Motion in Limine, Docket No. 56
Preclude Evidence of LD's Assumption of Risk
heart of this case is whether this five-year-old child can
assume the risk inherent with riding and dismounting from a
chairlift under New York law. Cases from New York State
courts leave as an issue of fact for the jury whether a
particular infant (regardless of the child's age) was
capable of assuming the risk of his or her activities. New
York courts do not create a bright line rule that minors at
five years or older are incapable of assuming risk, but
cf. Smith v. Sapienza, 115 A.D.2d 723, 496 N.Y.S.2d 538
(2d Dep't 1985) (holding, as matter of law, that three
and a half year old child victim of dog attack was incapable
of being held responsible for his actions for contributory
negligence). New York common law “has long disclaimed
any per se rule with regard to the age at which a child
cannot legally assume a risk and thereby not be responsible
for comparative fault for his or her injury, ”
Clark v. Interlaken Owners, Inc., 2 A.D.3d 338, 340,
770 N.Y.S.2d 58, 60 (1st Dep't 2003) (Tom, J.,
dissent). The majority of Clark court held that
assumption of risk doctrine did not apply to a five-year-old
playing around exposed construction equipment, “where
the danger was even more accessible [than another case cited]
and the risk at least as unappreciated by this
five-year-old plaintiff, ” 2 A.D.3d at 340, 770
N.Y.S.2d at 60 (emphasis supplied), citing Roberts v. New
York City Hous. Auth., 257 A.D.2d 550, 685 N.Y.S.2d 23
(1st Dep't), leave to appeal denied,
93 N.Y.2d 811, 694 N.Y.S.2d 633 (1999), concluding that
instructing the jury on assumption of the risk was error as a
matter of law, Clark, supra, 2 A.D.3d at
340, 770 N.Y.S.2d at 60. In Roberts, the Appellate
Division held a “six-year old under these
circumstances” that is, a child exposed to a steam line
fenced off by an easily breached fence next to the lawn where
children played, did not have the doctrine of assumption of
risk apply, 257 A.D.2d at 550, 685 N.Y.S.2d 24, 23.
Roberts provided an opportunity for establishing an
age-based bright line rule but the court decided on the
specific facts of that case; hence the standard plaintiffs
are in effect arguing was not adopted by New York courts.
argues that LD was just days away from being one year older
than the non sui juris status of age four and being
incapable as a matter of law being culpable (Docket No. 66,
Pls. Opp. Memo. at 4-5). Assumption of risk is a distinct
defense from contributory negligence, see Arbegast v.
Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d
161, 165, 490 N.Y.S.2d 751, 754-55 (1985), but both defenses
are subject to the doctrine of non sui juris,
see M.F. v. Delaney, 37 A.D.3d 1103, 1104-05, 830
N.Y.S.2d 412, 414 (4th Dep't 2007) (assumption
of risk and culpable conduct by plaintiffs should have been
dismissed because plaintiffs were 2 and 3 years old and hence
were non sui juris). Plaintiffs point to the concept
of non sui juris that absolves children of a certain
age or younger from culpability since (as a matter of law)
they are incapable of comprehending danger to be negligent or
responsible for her actions, Republic Ins. Co. v.
Michel, 885 F.Supp. 426, 432-33 (E.D.N.Y. 1995) (Azrack,
Mag. J.). Over the age of four, the status of a child is a
question of fact regarding the particular child's ability
to comprehend danger and care for herself, id. at
432; younger than four years of age, “an infant . . .
may be so young that he is unable to apprehend the existence
of danger, take precautions against it and exercise any
degree of care for his own safety. The law calls such a
child, non sui juris, ” id. at 433;
see also id. at 433 n.8 (literal translation of
Latin phrase is “not his own master, ” quoting
Black's Law Dictionary 1058 (6th ed.
1990)). The non sui juris child is incapable of
committing negligence, id. at 433. “Where an
infant is older than four years of age, the status of that
child as sui juris or non sui juris is to
be determined by the trier of fact, ” id.
(citing cases), with factors of the child's intelligence
and maturity dictating that status, id. One federal
court, applying New York contributory negligence doctrines,
held that the status of a child over the age of four was a
question of fact addressing “the particular child's
ability to comprehend danger and care for himself, ”
Republic Ins. Co., supra, 885 F.Supp. at
432 (see Docket No. 67, Defs. Reply Memo. at 5-6).
If there is a bright-line rule under New York law, the age is
four years old, not five as was LD when she was injured.
of the plaintiff is a factor in determining whether they are
capable of assuming risk of their actions, see Trupia v.
Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 396, 901
N.Y.S.2d 127, 130 (2010); Clark, supra, 2
A.D.3d at 340, 770 N.Y.S.2d at 60 (error to instruct on
assumption of risk for five-year-old on construction vehicle)
(Docket No. 54, Pls. Tr. Memo. at 6); Roberts,
supra, 257 A.D.2d 550, 685 N.Y.S.2d at 24;
Trippi v. Basile, 44 A.D.2d 759, 354 N.Y.S.2d 235,
236 (4th Dep't 1974) (error to instruct jury
that five and half year old child contributorily negligent,
and could be so charged only if he had the age, experience,
intelligence development and mental capacity to understand
the meaning of the statute violated and to comply therewith)
(Docket No. 54, Pls. Tr. Memo. at 5-6). As noted by the Court
of Appeals in Trupia, supra, 14 N.Y.3d at
396, 901 N.Y.S.2d at 130, in an almost 12-year-old
child's claim from sliding down a bannister, that court
states that children often act impulsively or without good
judgment, “they do not thereby consent to assume the
consequently arising dangers” for assumption of risk.
Plaintiffs distinguish DeLacy v. Catamount Dev.
Corp., 302 A.D.2d 735, 755 N.Y.S.2d 484 (3d Dep't
2003), due to the plaintiffs in that case being two years
older than LD was in 2010 (Docket No. 68, Pls. Reply Memo. at
5; see also Docket No. 66, Pls. Memo. at 4; but
cf. Docket No. 65, Defs. Memo. at 5-6). But the New York
Court of Appeals has not ruled on this question, but the
consensus of other New York courts do not recognize a bright
line rule that at age five or six a child is incapable of
having the requisite knowledge and maturity to assume the
risks of their actions; non sui juris status is
applicable to four years old and that age or older is an
issue of fact.
in New York have concluded that assumption of the risk is a
question of fact for the jury, Moore v. Hoffman, 114
A.D.3d 1265, 1266, 980 N.Y.S.2d 684, 685 (4th
Dep't 2014), in particular, riding and dismounting a
chairlift has risks that raises questions of fact,
DeLacy, supra, 302 A.D.2d at 736, 755
N.Y.S.2d at 486 (questions of fact whether a seven-year-old
novice skier fully appreciated the risks associated with
using a chairlift) (Docket No. 65, Defs. Memo. at 6). One
factual element in this case is the maturity and knowledge of
LD as to whether she assumed the risk of riding the chairlift
here despite being five years old. LD testified at her
deposition that prior to the 2010 incident she rode
chairlifts two or three other times, each time with her
father plaintiff Bryan DiFrancesco who assisted her getting
on and off the lift (Docket No. 56, Pls. Atty. Decl. ¶
18, Ex. C, LD EBT Tr. at 9), even to having Bryan hold his
ski pole over LD's lap until it was time to get off the
chairlift (id., Tr. at 9). Whether LD in her
circumstances could assume the risk of riding and
disembarking from the chairlift by herself is an issue of
fact and evidence regarding her maturity, age, experience,
intelligence, literacy, and mental capacity to understand the
risks she faced is relevant and admissible. As a result,
plaintiffs' motion precluding evidence of LD assuming the
risk is denied.
notwithstanding defendants' argument that plaintiffs'
motion in limine here is in fact an untimely motion for
summary judgment (Docket No. 65, Defs. Memo. at 5-6; Docket
No. 67, Defs. Reply Memo. at 2-3). As plaintiffs rebut
(Docket No. 68, Pls. Reply at 2-4), they are not seeking
entry of judgment to dismiss a defense, instead they properly
seek preclusion of evidence. But the factual issues in this
case under New York law require production of evidence of
LD's capacity to assume risk.
Preclude Evidence of LD's 2015 Snowboarding Incident
next seek excluded evidence from an accident LD had at
Holimont in 2015 resulting in injuries to her clavicle,
contending that the evidence is prejudicial and would be
admitted to show her to be accident prone (Docket No. 56,
Pls. Memo. at 7-10). LD's injuries in 2010 were to her
left leg and hip and not to her clavicle (id. at 8).
As argued in the motion to quash the subpoena to Holimont
(Docket No. 43, Pls. Memo. at 7), LD did not waive the
physician-patient privilege for LD's treatment of the
2015 injuries (Docket No. 56, Pls. Memo. at 8, 9-10).
Plaintiffs conclude that LD's subsequent snowboarding
accident is not relevant to her 2010 injuries (id.
contend that LD's injuries are not limited to her leg and
hip, but also include loss of enjoyment of life and emotional
injuries (Docket No. 65, Defs. Memo. at 12, citing Docket No.
56, Pls. Atty. Decl., Ex. H, Response to Defs. Interrog. No.
1). Again, as argued to defend the subpoena upon Holimont,
defendants contend that Second Department law provides that
LD put her physical condition at issue, justifying
admissibility of her 2015 injuries (Docket No. 65, Defs.
Memo. at 13).
noted in deciding plaintiffs' earlier motion (Docket No.
43), this Court in diversity is bound by the common law of
New York as settled by the New York State Court of Appeals or
this Court's prediction of how the New York Court of
Appeals would decide the issue if brought to it (see
Docket No. 70, Order of February 22, 2017, at 13). This Court
has held that the Court of Appeals, if it addressed the
waiver of physician-patient privilege, would limit that
waiver to so much of LD's physical or mental condition
placed in controversy here (id. at 17; see
id. at 16-17 (holding that plaintiffs have standing to
object to the subpoena based upon the unwaived privilege)).
This case is about LD's injuries from the 2010 incident,
with physical injuries to her lower body. Discussion of
LD's accident five years later and to an unrelated body
part is not relevant to her claims and would prejudice
plaintiffs, see Fed.R.Evid. 403. Admitting evidence
of the 2015 accident would introduce character evidence that
LD acted in accordance with a particular trait (clumsiness),
see Fed.R.Evid. 404(a)(1). Defendants have other
means of establishing the limits on LD's loss enjoyment
of life and limitations on her activities after the 2010
accident (such as her father's deposition testimony as to
her activities, see Docket No. 43, Pls. Atty. Decl.,
Ex. C, Bryan DiFrancesco EBT Tr.10-21, 23, 95-96)).
Court ordered plaintiffs to produce for in camera
inspection the Holimont medical records from the 2015
incident for this Court to determine if there is anything
applicable to this case, such as distinguishing 2010-caused
injuries from 2015 injuries or the effects of the 2015
incident on LD's 2010 injuries (Docket No. 70, Order of
Feb. 22, 2017, at 17-18). This in camera inspection
was for this Court to determine if there is anything
applicable to this case, such as discussion of LD's 2010
injuries or distinguishing 2010-caused injuries from 2015
injuries or the effects of the 2015 incident had on LD's
2010 injuries (Docket No. 70, Order of Feb. 22, 2017, at
17-18). This Court received those in camera medical
records (received March 6, 2017) and reviewed them and find that the
following documents should be produced and those that should
not. Below is Table 1, a spreadsheet listing the reviewed
documents and their production status.
Produce or Not?
No. of Pages
Do Not Produce
Do Not Produce
Do Not Produce
Jan. 28, 2015, note refers to prior left femur
fracture, to be seen in June 2015 for that. Notes
for Feb. 11, Mar. 5, and Mar. 16, 2015,
Active Body Clinic ("ABC") progress note
Do Not Produce
McMaster Univ. note
Do Not Produce
ABC progress note
Do Not Produce
ABC progress note
Do Not Produce
ABC progress note
Do Not Produce
ABC progress note
Do Not Produce
July 30 and Aug. 11, 2015, notes refer to leg
Hamilton Health Sciences note
documents ordered to be produced are those relevant to
LD's 2010 injuries, namely to her left leg and hips.
Excluded are those documents that refer only to her 2015
clavicle injury. The documents that plaintiffs are to produce
are the April 1, 2017, memorandum; the January 4, 2015,
consultation report; notes from July 30, 2015; and the July
30, 2015, notes from Hamilton Health Sciences. The remaining
documents exclusive involve the 2015 incident and injury and
there was not connection made to LD's 2010 injuries.
so much of plaintiffs' motion (Docket No. 56) to preclude
evidence from LD's 2015 Holimont accident is granted in
part, denied in part, with plaintiffs only to produce the
documents identified above.
Preclude Evidence as Against Public Policy
point to General Obligations Law § 5-326 that render
defendants' disclaimers as the operator of a place of
amusement void as against public policy (Docket No. 56, Pls.
Memo. at 4-5), see Rogowicki v. Troser Mgmt., 212
A.D.2d 1035, 623 N.Y.S.2d 47 (4th Dep't 1995).
Defendants counter that the statutory and regulatory scheme
under the Safety in Skiing Code, N.Y. Gen. Oblig. L. §
18-106; Labor Law §§ 202-c (use of ski tows), 867
(Safety in Skiing Code), authorized the release warning given
in the form signed by LD's uncle (Docket No. 65, Defs.
Memo. at 7), see Vanderwall, supra, 244
A.D.2d at 982, 665 N.Y.S.2d at 493.
also argue that any release here would be ineffective as to
LD since she never read or signed it, hence it could not
serve as a waiver of liability for her injuries (Docket No.
56, Pls. Memo. at 5), see Franco v. Neglia, 3
Misc.3d 15, 776 N.Y.S.2d 690 (N.Y. App. Term 2004) (release
invalid against 14-year-old participant, who signed release,
in first kickboxing class); Kaufman v. American Youth
Hostels, Inc., 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593
(2d Dep't 1958) (release signed by father invalid for
child's injuries) (id.). Plaintiffs' reply
that defendants fail to address how LD's uncle can bind
LD on the registration form waiver (Docket No. 68, Pls. Reply
Memo. at 4), by not distinguishing Franco,
supra, 3 Misc.3d 15, 776 N.Y.S.2d 690 (N.Y. App.
Term 2004), or Kaufman, supra, 6 A.D.2d
223, 229, 177 N.Y.S.2d 587, 593 (2d Dep't 1958)
(id.). They note that General Obligations Law §
18-106(a)(1) lists the risks inherent in skiing but do not
mention the risks inherent in riding a chairlift
(id.). Specifically, none of those risks include
having a second child obey a sign to open the chairlift bar
prematurely and the negligent location of that sign (see
id. at 4-5). Plaintiffs argue that assumption of risk is
not automatic for every personal injury case that a novice
(regardless of their age) cannot as a matter of law assume a
risk (id. at 6, citing Corrigan v. Musclemakers
Inc., 258 A.D.2d 861, 863, 686 N.Y.S.2d 143, 145 (3d
Dep't 1999) (injured 49-year-old woman who never been on
Franco the infant fourteen-year-old plaintiff signed
the release, 3 Misc.3d at 16, 776 N.Y.S.2d at 691. The
Supreme Court, Appellate Term, held that an infant
is not bound by releases which exculpate defendants from
damages for personal injury “since they lack the
capacity to enter into such agreements, ” id.,
at 16, 776 N.Y.S.2d at 691 (citing Kaufman,
supra, 6 A.D.2d 223, 177 N.Y.S.2d 587). The
plaintiff's decedent fifteen-year-old child in
Kaufman, supra, 6 A.D.2d at 229, 225, 177
N.Y.S.2d at 593, 589, signed the release with her father. The
Appellate Division, applying Oregon law, see id. at
225, 177 N.Y.S.2d at 589, held that the effect of the
father's signature was ambiguous, id. at 229,
225, 177 N.Y.S.2d at 593, 589. The decedent's capacity
there to sign the release by reason of her infancy “was
effectively exercised by [her] by the act of commencing this
action, ” id., at 229, 177 N.Y.S.2d at 593.
The Appellate Division upheld striking the defense of
decedent's release because she disaffirmed “the
agreement by reason of her infancy” exercised by her
father's commencement of this action but reversed
regarding striking that defense for the father's separate
action against the hostel, id. at 229, 177 N.Y.S.2d
at 593. Neither case held that the signature of the parent or
guardian alone of a release was binding upon the infant for
whom the guardian signed. Thus, these cases do not go as far
as plaintiffs contend to render ineffective a release signed
by a guardian on behalf of an infant participating in a risky
Infant Disaffirmance of Release
minor is not bound by a release executed by his parent,
” Alexander v. Kendall Cent. Sch. Dist., 221
A.D.2d 898, 899, 634 N.Y.S.2d 318, 319 (4th
Dep't 1995); I.C. ex rel. Solovsky v. Delta Galil
USA, 135 F.Supp.3d 196, 209 (S.D.N.Y. 2015); Shields
v. Gross, 58 N.Y.2d 338, 344, 461 N.Y.S.2d 254, 257
(conceding that infant, Brooke Shields, could under common
law disaffirm consent executed by another on her behalf),
rehearing denied, 59 N.Y.2d 762, 463 N.Y.S.2d 10030
(1983). The exception from this common law power of the
infant to disaffirm written consents made on her behalf is
where the New York State Legislature either abrogates this
common law right or makes particular infant agreements
binding upon the infant, Shields, supra, 58
N.Y.2d at 344-45, 461 N.Y.S.2d at 257.
conceding that at common law an infant could disaffirm
written consent made for her, the Court of Appeals in
Shields recognized that the State Legislature could
abrogate that right or create a right upon infants to enter
into binding contracts, id., 58 N.Y.2d at 344, 461
N.Y.S.2d at 257. “Where a statute expressly permits a
certain class of agreements to be made by infants, that
settles the question and makes the agreement valid and
enforceable, ” id., 58 N.Y.2d at 344, 461
N.Y.S.2d at 257, with that statute being ...