ALBANY, N.Y. (AP) – The school yard game of dodgeball, rollicking fun for some but worthy of an orange terror alert for others, is itself in the cross hairs of a legal challenge.

This week, a New York state Appellate Division panel threw a case back to a lower court, refusing to dismiss a lawsuit that claims a school wronged a 7-year-old girl who broke her elbow while playing dodgeball.

But what’s different about this case is it doesn’t fault the school for poor supervision. Instead, it takes aim at having kids of that age play the game at all, state and national education officials said.

The new challenge to dodgeball in schools comes when the game is flourishing as a trendy adult activity, with national associations and a movie starring Ben Stiller. Yet the game is also increasingly being targeted as unfair, exclusionary, and warlike for school kids.

In fact, 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,” states The National Association for Sport and Physical Education, a nonprofit 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.”

“Some kids may like it – the most skilled, the most confident,” the association stated, “but many do not! Certainly not the student who gets hit hard in the stomach, the head, or groin. And is not appropriate to teach our children that you win by hurting others.”

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. She became tangled with another child and fell, breaking her elbow. Her lawyer, Philip Johnson, said the injury required surgery and there is a continuing concern that 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 the lower court ruling that the school district’s request for summary dismissal of the case, without trial, should be denied. The appellate judges 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 the family’s expert witness, said Steve Bernheim, a recreational and educational safety authority. Bernheim said that “while there are no established standards of age appropriateness for dodge ball, it is recognized as a potentially dangerous activity and has been banned by several school districts in New York and elsewhere,” the judges wrote in the decision.

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, agreed Johnson and the school district’s attorney, Keith O’Hara.

Johnson said the family has not said how much it seeks to recover in the lawsuit.

“This seems to be a new area,” O’Hara said. “It kind of makes you think, “What’s next?”‘

More schools are likely going 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 named in the suit now must decide whether to again appeal to have the suit dismissed, or prepare for trial. No decision has been made, O’Hara said.

AP-ES-11-19-04 1623EST