N.Y. lawsuit on child safety tosses dodgeball into court

ALBANY, N.Y. -- The high-energy schoolyard game of dodgeball is getting kicked around a New York courtroom, where questions are being raised about whether it's just too dangerous for young children to play.

Last week, a New York state Appellate Division panel refused to dismiss a lawsuit that claims a school wronged a 7-year-old girl who broke her elbow while playing dodgeball.

State and national education officials say what makes the case unique is that the lawsuit doesn't fault the school for poor supervision -- but for allowing children that young to play at all.

The new challenge comes as the game is flourishing as a trendy adult activity; the obsession was the comic focus of a movie starring Ben Stiller.

But the game is also being targeted as unfair, exclusionary, and warlike for school-age youngsters; some schools in Maine, Maryland, New York, Virginia, Texas, Massachusetts and Utah have banned dodgeball, or its variations, including war ball, monster ball and kill ball.

"Dodgeball is not an appropriate activity for K-12 school physical education programs," according to The National Association for Sport and Physical Education, a not-for-profit professional organization of 20,000 physical education teachers, professors, coaches, athletic directors and trainers. Dodgeball provides "limited opportunities for everyone in the class, especially the slower, less agile students who need the activity the most."

New York's case began in the fall of 2001. Seven-year-old Heather Lindaman was playing a variation of dodgeball in gym class on a hardwood court. The version included several balls and no safety or protection zone to run from the thrown balls.

Heather became tangled with another child and fell, breaking her elbow. Her attorney, Philip Johnson, said the injury required surgery and there is a continuing concern her injured arm might not grow as long as her other arm because a growth plate may have been affected.

The New York appellate judges upheld a lower court ruling that the school district's request for summary dismissal of the case, without trial, should be denied. They said there is an argument to be heard about whether this version of dodgeball "was particularly dangerous for younger children."

The judges found some merit in the family's expert witness, Steve Bernheim, a recreational and educational safety authority. The judges wrote: "While there are no established standards of age appropriateness for dodgeball, it is recognized as a potentially dangerous activity and has been banned by several school districts in New York and elsewhere."

The appellate panel said while schools can't be "insurers of the safety of their students, they are under a duty to exercise the same degree of care as would a reasonably prudent parent."

The girl is now active and healthy, argued the school district's attorney, Keith O'Hara, and Johnson agreed. The family has not said how much it seeks in its lawsuit, Johnson said.

"This seems to be a new area," O'Hara said. "It kind of makes you think, 'What's next?"'

More schools are likely to be asking the same thing.

The New York State School Boards Association is analyzing Thursday's court decision and preparing an article for its members governing districts statewide.

"Districts get sued all the time over these issues and the courts throw them out, usually in favor of the districts," said the association's Barbara Bradley. "But in this particular instance, the court has focused on whether this (game) is appropriate ... that's what seems unusual."

The Vestal Central School District now must decide whether to again appeal to have the suit dismissed, or prepare for trial. No decision has been made, O'Hara said.