Opinion
2015-02890 Index No. 940/13.
12-09-2015
Conor DUFFY, etc., appellant, v. LONG BEACH CITY SCHOOL DISTRICT, et al., respondents.
Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondents.
Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondents.
Opinion
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bruno, J.), dated December 15, 2014, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
In October 2011, the then 15–year–old plaintiff was a member of his high school's junior varsity football team. After the school day had ended, and after changing into his practice gear in the locker room, the plaintiff went to the practice field with other members of his team to wait for football practice to begin. The players were unsupervised while they waited; there were no football coaches present on the practice field. While they waited for practice to begin, the plaintiff and other members of the team began taking turns using a piece of practice equipment called a blocking sled to catapult each other into the air. Two other members of the team were propelled into the air before the plaintiff took his turn. The plaintiff was propelled about 10 or 15 feet into the air, and when he landed he fractured both of his wrists. The plaintiff stated that about 20 minutes passed between the time the players first went over to the blocking sled and the time that he was injured. The plaintiff's head coach later testified that if he or any other coaches had been out on the practice field, they would not have allowed the players to use the blocking sled to catapult each other into the air.
The plaintiff commenced this action to recover damages for negligent supervision, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion, concluding that the plaintiff assumed the risk of injury by choosing to engage in the conduct that resulted in his injury. The plaintiff appeals.
“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263; see Stephenson v. City of New York, 19 N.Y.3d 1031, 1033, 954 N.Y.S.2d 782, 978 N.E.2d 1251). A school must “ ‘exercise such care of [its students] as a parent of ordinary prudence would observe in comparable circumstances' ” (Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263, quoting Hoose v. Drumm, 281 N.Y. 54, 58, 22 N.E.2d 233; see Stephenson v. City of New York, 19 N.Y.3d at 1033, 954 N.Y.S.2d 782, 978 N.E.2d 1251). “The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” (Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263). “The school's duty is thus coextensive with and concomitant to its physical custody of and control over the child” (Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849). “When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases” (Pratt v. Robinson, 39 N.Y.2d at 560, 384 N.Y.S.2d 749, 349 N.E.2d 849; see Ernest v. Red Cr. Cent. School Dist., 93 N.Y.2d 664, 671–672, 695 N.Y.S.2d 531, 717 N.E.2d 690).
Contrary to the defendants' contention, they failed to demonstrate that they had relinquished custody and control of the plaintiff at the time of the accident. To the contrary, the record demonstrates that the defendants retained custody and control over the plaintiff at the time of the accident, and that the junior varsity head coach was responsible for his supervision. Under the circumstances, “the mere fact that the accident occurred following the formal end of classes for the day is without legal significance” (Khosrova v. Hampton Bays Union Free Sch. Dist., 99 A.D.3d 669, 671, 951 N.Y.S.2d 235; see Nash v. Port Wash. Union Free School Dist., 83 A.D.3d 136, 148, 922 N.Y.S.2d 408; see also Ernest v. Red Cr. Cent. School Dist., 93 N.Y.2d 664, 671–672, 695 N.Y.S.2d 531, 717 N.E.2d 690). Accordingly, the defendants failed to establish, prima facie, that they had no duty to supervise the plaintiff at the time of the accident (see Khosrova v. Hampton Bays Union Free Sch. Dist., 99 A.D.3d at 671–672, 951 N.Y.S.2d 235; Nash v. Port Wash. Union Free School Dist., 83 A.D.3d at 148, 922 N.Y.S.2d 408; cf. Reed v. Pawling Cent. School Dist., 245 A.D.2d 281, 281–282, 664 N.Y.S.2d 483).
Furthermore, the defendants failed to establish their prima facie entitlement to judgment as a matter of law on the ground that the action was barred by the doctrine of primary assumption of risk. The doctrine of primary assumption of risk is most persuasively justified for its utility in facilitating “ ‘free and vigorous participation in athletic activities' ” (Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395, 901 N.Y.S.2d 127, 927 N.E.2d 547, quoting Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29). By placing the risk of participation on the participants themselves, rather than on the sponsor, the doctrine encourages sponsorship, which leads to more opportunities to participate in sports or other recreational activities (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933). The doctrine of primary assumption of risk is not applicable to the conduct at issue in this case. As with the “horseplay” at issue in Trupia, the use of the blocking sled to catapult each other into the air is not the sort of “socially valuable voluntary activity” that the doctrine seeks to encourage (Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 396, 901 N.Y.S.2d 127, 927 N.E.2d 547; see Wolfe v. North Merrick Union Free Sch. Dist., 122 A.D.3d 620, 621–622, 996 N.Y.S.2d 125; Walker v. City of New York, 82 A.D.3d 966, 966–967, 918 N.Y.S.2d 775; Sarnes v. City of New York, 73 A.D.3d 1154, 1155, 900 N.Y.S.2d 894; cf. Barretto v. City of New York, 229 A.D.2d 214, 655 N.Y.S.2d 484). Furthermore, the defendants did not establish that the commonly appreciated risks which are inherent in and arise out of the nature of football generally and flow from such participation on the football team included the risk of sustaining injury after being catapulted through the air by a blocking sled (see Braile v. Patchogue Medford Sch. Dist. of Town of Brookhaven, Suffolk County, N.Y., 123 A.D.3d 960, 962, 999 N.Y.S.2d 873; cf. Litz v. Clinton Cent. Sch. Dist., 126 A.D.3d 1306, 1307–1308, 5 N.Y.S.3d 636). Accordingly, the defendants did not establish that the doctrine of primary assumption of risk applies here (see Custodi v. Town of Amherst, 20 N.Y.3d at 88–89, 957 N.Y.S.2d 268, 980 N.E.2d 933; Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 396, 901 N.Y.S.2d 127, 927 N.E.2d 547; Braile v. Patchogue Medford Sch. Dist. of Town of Brookhaven, Suffolk County, N.Y., 123 A.D.3d 960, 962, 999 N.Y.S.2d 873; Wolfe v. North Merrick Union Free Sch. Dist., 122 A.D.3d 620, 621–622, 996 N.Y.S.2d 125; Walker v. City of New York, 82 A.D.3d 966, 966–967, 918 N.Y.S.2d 775; Sarnes v. City of New York, 73 A.D.3d 1154, 1155, 900 N.Y.S.2d 894).
Contrary to the defendants' further contention, they failed to establish, as a matter of law, that they adequately supervised the plaintiff or that, even if they had, the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision (see Weiner v. Jericho Union Free School Dist., 89 A.D.3d 728, 730, 932 N.Y.S.2d 138; Luciano v. Our Lady of Sorrows School, 79 A.D.3d 705, 705, 911 N.Y.S.2d 911). Accordingly, to the extent that the defendants contend that they are entitled to summary judgment on the ground that the plaintiff's conduct was the sole proximate cause of his injuries, this contention is without merit inasmuch as the defendants failed to establish, prima facie, that they were free from negligence (see Wolfe v. North Merrick Union Free Sch. Dist., 122 A.D.3d 620, 621–622, 996 N.Y.S.2d 125).
Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the Supreme Court should have denied their motion for summary judgment regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).