This seems to me an extremely easy case. 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.
The majority makes this point, which is enough to dispose of the case, near the end of its opinion (majority op at 396 [“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”]). The rest of the majority opinion is, in my view, an extended dictum, which seems to say that the assumption of risk defense is largely if not entirely limited to cases involving “athletic and recreative activities” (majority op at 395).
The majority’s dictum invites a number of questions that the majority 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 395)—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?
Assumption of risk in tort law is a hard idea to understand, and I do not imply that the majority’s understanding of it is necessarily wrong. There may be perfectly good answers to the questions I have asked, and to the many others that could be asked about this subject. But I think it is a mistake to make *398sweeping pronouncements in a case that does not require it, while ignoring the questions those sweeping pronouncements raise.
Judges Ciparick, Graffeo and Jones concur with Chief Judge Lippman; Judge Smith concurs in result in a separate opinion in which Judges Read and Pigott concur.
Order affirmed, etc.