Newfield Central Sch. Dist. Number One

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Third DepartmentDec 28, 1978
66 A.D.2d 968 (N.Y. App. Div. 1978)

December 28, 1978

Appeal from an order of the Supreme Court at Trial Term, entered October 27, 1977 in Tompkins County, which granted defendant's motion to dismiss the complaint at the close of plaintiffs' case. Viewing the facts in a light most favorable to the plaintiffs, it appears that the infant plaintiff sustained injuries when she fell from a playground "jungle gym" during a supervised school recess period. Although she was wearing mittens at the time, in violation of a school regulation which prohibited children from playing on that apparatus while wearing mittens or gloves, a school district has a duty to provide supervision of playground activities (Education Law, § 1709, subd 16; Decker v Dundee Cent. School Dist., 4 N.Y.2d 462) and a jury might reasonably find that a failure to enforce such a regulation through inadequate supervision constitutes negligence that was the proximate cause of her injuries (see Tashjian v. North Colonie Cent. School Dist. No. 5., 50 A.D.2d 691, mot for lv to app den 38 N.Y.2d 708). Accordingly, it was error for the trial court to dismiss the instant complaint at the close of plaintiffs' case. Order reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Kane, J.P., Main, Larkin, Mikoll and Herlihy, JJ., concur.