Opinion
No. 5166/12.
04-10-2015
Jonathan VAN BUREN and Maribel Van Buren, Plaintiffs, v. MARK L., an infant by his Parents and Natural Guardians, MARK L. and Karen L., Angelo C., by his Parents and Natural Guardians, Anthony C. and Christine C., Defendants.
Thomas F. Kelly, III, Esq., Kelly & Meenagh, LLP, Poughkeepsie, Attorneys for Plaintiff. John T. Cofresi, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Esqs., New York, Attorneys for Defendant Mark L., an infant by his Parents and Natural Guardians, Mark L. and Karen L. Tristan Smith, Esq., Law Offices of John Trop, Middletown, Attorneys for Defendant Angelo C., by his Parents and Natural Guardians, Anthony C. and Christine C.
Thomas F. Kelly, III, Esq., Kelly & Meenagh, LLP, Poughkeepsie, Attorneys for Plaintiff.
John T. Cofresi, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Esqs., New York, Attorneys for Defendant Mark L., an infant by his Parents and Natural Guardians, Mark L. and Karen L.
Tristan Smith, Esq., Law Offices of John Trop, Middletown, Attorneys for Defendant Angelo C., by his Parents and Natural Guardians, Anthony C. and Christine C.
Opinion
JAMES D. PAGONES, J.
Defendant Mark L., an infant by his Parents and Natural Guardians, Mark L. and Karen L., moves for an order, pursuant to CPLR 3212, granting him summary judgment and dismissing plaintiffs' complaint. Defendant Angelo C., by his Parents and Natural Guardians Anthony C. and Christine C. moves for an order, pursuant to CPLR 3212, granting him summary judgment and dismissing plaintiffs' complaint. Plaintiffs cross-move for an order, pursuant to CPLR 3212, granting them summary judgment and dismissing the culpable conduct and assumption of risk affirmative defenses.
The following papers were considered:
| Notice of Motion–Affirmation–Exhibits A–S–Affidavit of Service | 1–22 |
| Amended Notice of Motion–Affidavit of Service | 23–24 |
| Memorandum of Law–Affidavit of Service | 25–26 |
| Notice of Motion–Affirmation–Affidavit of Service–Exhibit A | 27–30 |
| Affirmation in Opposition and Cross–Motion–Exhibits A–G–Affidavit of Service | 31–39 |
| Reply Affirmation–Affidavit of Service | 40–41 |
| Reply Affirmation–Affidavit of Service | 42–43 |
| Reply Affirmation–Affidavit of Service | 44–45 |
Upon the foregoing papers, the defendants' motions and plaintiffs' cross-motion are decided as follows:
By way of background, plaintiffs in this action seek money damages for personal injuries allegedly sustained by the plaintiff, Jonathan Van Buren, as a result of an accident which occurred on December 14, 2011. Plaintiffs allege that defendant Mark L. fell, stumbled or otherwise came into contact with plaintiff Jonathan Van Buren causing him to sustain bodily injuries. Plaintiff Maribel Van Buren maintains a derivative claim.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974] ). The movants must set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). Once the movants set forth a prima facie case, the burden of going forward shifts to the opponents of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
Under New York law, an infant is expected to exercise the level of care commensurate with his or her age, experience, intelligence, and ability (see Banks by Banks v. U.S., 969 F.Supp 884 [SDNY 1997] ; Eagle v. Janoff, 12 A.D.2d 638 [2nd Dept 1960] ). Children at play are not absolved from the obligation, which rests upon every person whether of full age or not, to exercise reasonable care to avoid injury to others, and if personal injuries result from the failure of a child to exercise such reasonable care, there is actionable negligence for which the child is liable (see Deliso v. Cangialosi, 117 Misc.2d 105 [Civ Ct, Kings County 1982] ).
In an effort to promote judicial economy and conserve judicial resources, the defendants' motions will be simultaneously addressed.
The deposition testimony of defendant Mark L. indicates that he was twelve (12) years of age at the time of the accident (see Deposition of Mark L. at p 5 lines 23–24). On the date of the accident, defendant Mark L. indicates that he was a little over five (5) foot tall and weighed about eighty (80) pounds (see Deposition of Mark L. at p 14 lines 20–22). Defendant Mark L. indicates that prior to the accident occurring, he was going to plaintiff Jonathan Van Buren's classroom (see Deposition of Mark L. at p 21 lines 4–13). Defendant Mark L. indicates that co-defendant Angelo C. tripped him, causing him to stumble into Mr. Van Buren (see Deposition of Mark L. at p 22–23 lines 8–25, lines 2–18). Defendant Mark L. indicates that he and defendant Angelo C. came upon each other in the middle of the hallway, he moved right, defendant Angelo C. moved right, he moved left, defendant Angelo C. moved left, ultimately leading to defendant Mark L. quickly moving out of his way; however in the process of doing so, he was tripped by his co-defendant (see Deposition of Mark L. at p 26–27 lines 25, lines 2–11). The deposition testimony of co-defendant Angelo C. tells a somewhat different story, with the same ending. Defendant Angelo C. was also twelve (12) years of age at the time of the accident. Angelo C. indicates that he and Marl L. met in the hallway and were unintentionally blocking each others paths, then Mark L. ran around him and stumbled into plaintiff Mr. Van Buren (see Deposition of Angelo C. at p 11 lines 2–23). Young Angelo C. indicates that before the incident, he and forty (40) other children used to play tag in the hallways (see Deposition of Angelo C. at p 29 lines 13–20). Mr. Van Buren testified that a student had asked him to help her open her lock on her locker in the hallway. As he was doing so, he had one foot in the hall and one in the doorway and he was struck (see Deposition of Van Buren at p 25 lines 3–9). Mr. Van Buren stated, when asked what struck meant, that he saw defendant Mark L. a second or a fraction of a second prior to Mark L. crashing into him at a high rate of speed (see Deposition of Van Buren at p 25 lines 10–15).
Here, the deposition testimony as cited above clearly establishes defendants' prima facie entitlement to judgment as matter of law. Accepting either scenario as forwarded to this Court by the infant defendants, i.e. that defendant Mark L. merely lost his balance and stumbled into plaintiff Jonathan Van Buren or that he was tripped and stumbled into plaintiff Jonathan Van Buren, the underlying theme of both versions of the story indicates this accident was just that, an accident. “Not every possible accident due to unusual and reasonably foreseeable combinations of circumstances is included in the concept of actionable negligence ...” (Ward v. State of New York, 81 Misc.2d 583 [Ct Cl 1975] ).
The deposition testimony of the infants clearly indicates that there was no evidence that either defendants' conduct deviated from the degree of care expected of a reasonably prudent child of their age, experience, intelligence, and degree of development (see generally Sorto v. Flores, 241 A.D.2d 446 [2nd Dept 1997] ). Assuming arguendo that the boys were involved in a school-wide game of tag, as is insinuated throughout the deposition testimony as submitted herein, unless the frolic chosen is so inherently dangerous that mere participation therein is negligence, the children should only be held liable for an act which was a deviation from the frolic to such an extent that it would put the children on notice of an unreasonable risk of injury (see Carrillo v. Kreckel, 43 A.D.2d 499 [4th Dept 1974] ). Here, it cannot be said that the mere participation in a game of tag, while prohibited in school, was so inherently dangerous that the mere participation therein was negligence.
The deposition testimony of the parties to this lawsuit establishes that the defendants did not lack ordinary care, or fail to use the degree of care of that of a reasonably prudent twelve (12) year old attending Henry H. Wells Middle School. To the contrary, the deposition testimony of the parties establishes that defendant Mark L. tripped and accidently “struck” the plaintiff. For the Court to hold otherwise would not only open the door to a new and vast field of litigation involving teachers and their students, but may make it necessary for school-aged children to be ever mindful of their trips and slips for the fear they may negligently come into contact with one of their teachers or fellow students; thus opening themselves up to tort liability (see generally Carrillo v. Kreckel, 43 A.D.2d 499 [4th Dept 1974] ).Since defendants have made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ), plaintiffs must show that genuine triable issues of material fact exist in order to defeat the motion (id. ).
In opposition to the motions, plaintiffs' counsel alleges that the defendants have failed to submit sufficient evidence to establish their prima facie entitlement to judgment as a matter of law. Merely challenging the sufficiency of defendants' moving papers is insufficient to establish the existence of material issues of fact which would require a trial of this action (see generally Gesuale v. Campanelli & Associates, P.C., 126 AD3d 936 [2nd Dept 2015] ). Moreover, the citation to testimony concerning teacher's responsibilities between periods, fails to raise an issue of fact as to these defendants' alleged liability for the injuries sustained by plaintiff Jonathan Van Buren.
Accordingly, defendants' motions for summary judgment are granted in its entirety and plaintiffs' complaint is dismissed. Plaintiffs' cross-motion is denied as academic.
The foregoing constitutes the decision and order of the Court.