Opinion
April 27, 1971
Appeal from a judgment of the Supreme Court, entered April 23, 1970 in Schoharie County, upon a verdict rendered at a Trial Term, in favor of plaintiffs and against defendants. The infant plaintiff, a girl 11 years of age and a fifth grade student, was injured on April 3, 1968 while performing on rings during a school gymnastics class under the supervision of defendant Mahoney, a certified teacher in physical education. On trial, the facts were sharply in dispute, but there was proof: that the accident took place when the infant stood up in the rings and, in jumping out, fell backwards landing on her back; that she had dismounted similarly, by standing in the rings and jumping off backwards, on other occasions while in the fourth and fifth grades and had seen other students do the same, without objection from the teacher; that there were six different pieces of apparatus on the floor and there were 35 girls in the class divided into groups of about five each; that when the infant was on the rings there was two "spotters" of her class assigned to break her fall should a mishap occur while performing; that the girls were told by Miss Mahoney that they could do anything they wanted on the rings except swing and to get out of the rings by going backwards so they would come down on their feet; that the rings were above their reach and beneath them was a mat; that the teacher never demonstrated any stunts on any pieces of apparatus and that the "spotters" were not instructed how to perform; and that Miss Mahoney did not see the infant plaintiff fall, as she had turned to go to the trampoline at the time. While denying that she had ever seen her students stand up in the rings and jump out backwards and that she taught them to jump out, Miss Mahoney admitted that that would be dangerous and they "they could kill themselves". There was proof that the State Physical Education Syllabus, in effect and used by the school, under the heading "PROGRAM OF ACTIVITIES", under the subdivision "Hanging Apparatus" and in that part dealing with the "Fifth Grade" and "Leg Movements", in particular, it was stated: "The apparatus and the class should be so placed as to be entirely in view of the teacher". (Cf. Danbois v. New York Cent. R.R. Co., 12 N.Y.2d 234; Wilson v. State of New York, 14 A.D.2d 976, mot. for lv. to app. den. 11 N.Y.2d 643). The trial court charged that plaintiff had the burden of proving that defendant teacher was negligent in conducting, instructing or supervising the gym class of which infant plaintiff was a member and restricted the liability of the school district to acts of its teacher performed within the scope of her employment (see Ostrowski v. Bd. of Educ. of Coxsackie-Athens Cent. School District, 31 A.D.2d 571; Domino v. Mercurio, 17 A.D.2d 342, 349-350, affd. 13 N.Y.2d 922; Shaw v. Village of Hempstead, 20 A.D.2d 663), there having been no requests or exceptions to the charge. It cannot be said that the jury could not have reached its conclusion on any fair interpretation of the evidence (cf. Knise v. Shearer, 30 A.D.2d 741). Judgment affirmed, with costs. Herlihy, P.J., Greenblott, Cooke and Simons, JJ., concur; Reynolds, J., dissents and votes to reverse and dismiss the complaint in the following memorandum: I vote to reverse the verdict of the jury and dismiss the complaint. In my opinion there is no evidence of any negligence on the part of the Board of Education and the evidence does not support a finding that Nancy G. Mahoney, the teacher, was negligent in the performance of her duties.