There is an old adage that, “hard cases make bad law.”  But, the reverse is also true, bad law makes hard cases.  On occasion the Court is swayed, or at least influenced, by tertiary, extra-legal considerations.  One of the more prevalent considerations is undue sympathy towards a child claimant.  Whereas the law recognizes certain legal distinctions in regards to a child’s course of conduct and prosecution of a lawsuit, the sympathy-factor of an infant plaintiff can color the determination of fact.

In Grigorian v. City of NY, NY Slip Op 04102, the Second Department affirmed the lower court’s granting of summary judgment in favor of defendants despite injuries sustained by an infant plaintiff.

The infant plaintiff Robert Grigorian slipped and fell off a snow mound.  On the day of the accident, the infant plaintiff was released from school at 3:00 P.M., and went home.  He returned to the school at 5:00 p.m. to pick up his younger sister from an after-school program.  The two began to walk home and has they were walking, they passed a snow mound, located between the infant plaintiff’s school and sister’s school on a street that was closed to traffic and used as a parking lot for teacher.  The sister climbed up the snow mound and the infant plaintiff climbed up the mound to retrieve her.  He slipped and fell in so doing, injuring himself.

The Appellate Division held that the City defendants established their entitlement to summary judgment, because the infant plaintiff and his sister passed out of the “orbit of the authority” of their respective schools at the time of the incident and the schools no longer had control over them.   Further, the area where the incident occurred was maintained in a reasonably safe condition and the snow mound did not constitute a dangerous condition.

In the case, the Court was able to separate liability and sympathy in its analysis as to issues of fact and theories of liability.  Plaintiff attorneys will often attempt to use the fact that the plaintiff is a child as leverage in negotiations, confounding liability and potential damages.  There are times, when such extra-legal considerations should be factored into the defense of the matter — making SJ motion practice critical.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.