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Five-year-old can't assume risk; retrial ordered.

Publication: Trial
Publication Date: 01-MAR-04
Format: Online
Delivery: Immediate Online Access
Full Article Title: Five-year-old can't assume risk; retrial ordered.(New York)

Article Excerpt
A five-year-old boy is not able to fully appreciate risk, and therefore a jury cannot apply the doctrine of assumption of risk in determining liability, a New York appeals court has ruled. Although the lower court's jury instruction was not preserved for review because the plaintiff attorney did not object to it at the time, the appeals court nevertheless decided that the instruction was erroneous and ordered a new trial. (Clark v. Interlaken Owners, Andem Constr., No. 106915/97, 2003 WL 23025443 (N.Y. App. Div. Dec. 30, 2003).)

"Defendant correctly points out that...

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