At first blush, the Court of Appeals (New York's highest court) decision of yesterday, April 6, in Trupia v. Lake George Central School District, appears to strictly limit the instances under which a child's negligent supervision claims will be dismissed as a matter of law to those cases involving "athletic or recreative activities." (In those cases, the defendants are insulated from liability on public policy grounds in order to foster the offering of these activities - which are valuable - to New York's children.)

As a practical matter - and unfortunately - this decision raises a lot more questions than it answers.

In Trupia, the 12 year-old plaintiff sustained serious personal injuries when he was joyriding down a bannister while attending defendant's summer program. In affirming the Appellate Division's order that denied the defendant's application seeking to bar outright the plaintiff's claim on the grounds that he had assumed the risk of being injured by engaging in this activity, the Court of Appeals stated as follows:

"Little would remain of an educational institution's obligation adequately to supervise the children in its charge if school children could generally be deemed to have consented in advance to risks of their misconduct. Children often act impulsively or without good judgment-that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so. If the infant plaintiff's harm is attributable in some measure to his own conduct, and not to negligence on defendants' part, that would be appropriately taken account of within a comparative fault allocation; it is not a predicate upon which an assumption of risk should be permitted to be applied."

Judge Smith, in a concurring opinion, stated it more plainly:

"Assumption of risk cannot possibly be a defense here, because it is absurd to say that a 12-year-old boy 'assumed the risk' that his teachers would fail to supervise him. That is a risk a great many children would happily assume, but they are not allowed to assume it for the same reason that the duty to supervise exists in the first place: Children are not mature, and it is for adults, not children, to decide how much supervision they need."

Judge Smith's concurrence didn't end there, however:

"The majority's [opinion] invites a number of questions that [it] makes no attempt to answer. Most obvious among them: What exactly is "athletic or recreative" activity? Indeed, why was Luke Trupia's chosen activity-sliding down a banister-not "recreative"? He was obviously doing it for fun. The majority says that "athletic and recreative activities possess enormous social value" (majority op at 5) - a value that presumably does not inhere in banister sliding. But why exactly is sliding down a banister (supposing it to be done by an adult with a taste for such amusement) of less "social value" than sliding down a ski slope or bobsled run? And if the latter activities are more socially valuable than the former, why is the banister slider, who chose the less desirable form of amusement, in a better position to recover damages than the skier or bobsledder?"

In my view, the logic of Judge Smith's opinion is dead-on, and it raises some very difficult questions. I hope the Court answers these questions in the near future, and provides greater clarity on these important issues.