Summary
In Capotosto v Roman Catholic Diocese of Rockville Centre (2 AD3d 384, 386 [2d Dept. 2003]) the Court held that based on prior precedent "the use of asphalt or blacktop as a playground surface for touch football is not inherently dangerous" as a matter of law and therefore expert testimony could not be used to assert that a higher standard of care was imposed upon the defendant.
Summary of this case from Hotaling v. City of New YorkOpinion
2002-10965.
December 1, 2003.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Burke, J.), dated November 1, 2002, which denied their motion for summary judgment dismissing the complaint.
Patrick F. Adams, P.C., Bay Shore, N.Y. (Charles J. Adams and Vito A. Cardo III of counsel), for appellants.
Bracken, Margolin Gouvis, LLP, Islandia, N.Y. (Patricia M. Meisenheimer of counsel), for respondents.
Before: ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
On April 22, 1997, the infant plaintiff, then eight years old and in the third grade, was injured while playing two-hand touch football with three other boys on the playground of his school, the defendant Saint Patrick's School (hereinafter the school). The injury occurred during supervised lunchtime recess at the school, when the infant plaintiff, in an attempt to catch a low-thrown pass, was struck in the head by the knee of a second-grade schoolmate defending the play, causing the infant plaintiff's head to strike the blacktop surface of the playground. The plaintiffs commenced this action, contending that the defendants inadequately supervised the children on the playground, and negligently provided the infant plaintiff with an unsafe surface on which to play. The defendants' motion for summary judgment dismissing the complaint was denied on the ground that there were triable issues of fact as to whether the defendants adequately supervised the infant plaintiff. We reverse.
"Schools are under a duty to adequately supervise students in their charge, and they will be held liable for foreseeable injuries proximately related to absence of adequate supervision" ( Mirand v. City of New York, 84 N.Y.2d 44, 49; see Kandkhorov v. Pinkhasov, 302 A.D.2d 432, 433). Assuming that there is a triable issue of fact with respect to the adequacy of supervision, the defendants cannot be found liable absent a showing that the alleged negligent supervision constituted a proximate cause of the injury sustained ( see Lopez v. Freeport Union Free School Dist., 288 A.D.2d 355, 356; see also Berdecia v. City of New York, 289 A.D.2d 354; Navarra v. Lynbrook Pub. Schools Lynchbrook Union Free School Dist., 289 A.D.2d 211).
The accident in this case was caused by a "spontaneous and unforeseeable act committed by a fellow * * * student when the two collided" ( Sangineto v. Mamaroneck Union Free School District, 282 A.D.2d 596; see also Wuest v. Board of Educ., 298 A.D.2d 578; Shabot v. East Ramapo School Dist., 269 A.D.2d 587; Buckvar v. Syosset Cent. School Dist., 148 A.D.2d 409). Under these circumstances, "no amount of supervision, however intense, would have succeeded in preventing the accident" ( Ancewicz v. Western Suffolk BOCES, 282 A.D.2d 632, 634; see also Janukajtis v. Fallon, 284 A.D.2d 428, 430; Convey v. City of Rye School Dist., 271 A.D.2d 154, 160). Therefore, the plaintiffs failed to meet their burden of proving that inadequate supervision was a proximate cause of the injury ( see Lopez v. Freeport Union Free School Dist., supra; Convey v. City of Rye School Dist., supra)
Furthermore, the defendants established their entitlement to judgment as a matter of law by demonstrating that the blacktop playground surface was maintained in a reasonably safe condition ( see Lopez v. Freeport Union Free School Dist., supra)
Contrary to the plaintiffs' contention, the use of asphalt or blacktop as a playground surface for touch football is not inherently dangerous ( see Stewart v. New York City Housing Auth., 33 A.D.2d 901; McGill v. 39 Casino St. Corp., 16 A.D.2d 832, 833; see also Washington v. City of Yonkers, 293 A.D.2d 741) . The plaintiffs may not rely on the non-mandatory recommendations and guidelines promulgated by governmental and professional entities to prove the contrary ( see Washington v. City of Yonkers, supra; Merson v. Syosset Cent. School Dist., 286 A.D.2d 668, 669-670; Pinzon v. City of New York, 197 A.D.2d 680, 681; McCarthy v. State of New York, 167 A.D.2d 516, 517). Absent proof that a particular guideline or recommendation has been adopted in actual practice, it cannot be held to impose a heightened standard of care upon the defendants ( see Dash v. City of New York, 236 A.D.2d 579, 580; Rosario v. City of New York, 157 A.D.2d 467; see generally Diaz v. New York Downtown Hosp., 99 N.Y.2d 542), and the affidavit of the plaintiffs' expert was insufficient to raise a triable issue of fact in this regard ( see Diaz v. New York Downtown Hosp., supra; Merson v. Syosset Cent. School Dist., supra).
McGINITY, J.P., LUCIANO, SCHMIDT and RIVERA, JJ., concur.