386 N.Y.S.2d 125
53 A.D.2d 1002

William F. BROD, III, an Infant, by William F. Brod, Jr., his Parent and Natural Guardian, et al., Respondents,
Central School District No. 1 of the Towns of Sand Lake and Poestenkill et al., Appellants

No. 19351

Supreme Court of New York, Appellate Division, Third Department

July 29, 1976

Koreman, P. J., Greenblott, Mahoney, Herlihy and Reynolds, JJ., concur.

On October 12, 1973 the infant plaintiff, then nine years of age, attending Poestenkill Elementary School, was injured when he fell to the floor while participating in a gymnasium class in his bare feet. He had forgotten to bring his sneakers and was told by his physical education teacher, the defendant Ann Neilson, that if he wanted to participate in the activities of the class he would have to remove his shoes and socks. The infant testified that while engaged in an activity involving bouncing a ball, the ball got away from him and he ran after it; that his bare feet stuck to the floor causing him to lose his balance and fall. The gym teacher testified that she observed the infant when he fell, that he was not running, and that he tripped over his own feet while bouncing the ball. As a result of the fall, the infant lost two front teeth. The jury returned a verdict in favor of the infant plaintiff in the amount of $15,000 and for the infant's father in the amount of $3,800. The record presents issues of fact for the jury as to whether or not the gym teacher was negligent in permitting the infant plaintiff to engage in the physical activities of the class


Judgment modified, on the law and the facts, and a new trial ordered, limited to the issue of damages, unless plaintiffs shall, within 20 days after service of a copy of the order to be entered hereon, stipulate to reduce the verdicts to $8,000 plus interest in the action of the infant William F. Brod, III, and to $750 plus interest in the action of the father William F. Brod, Jr., in which event the judgment, as so reduced, is affirmed, without costs.