CHILD STRUCK WITH TENNIS BALL DURING GYM CLASS LOSES "INADEQUATE SUPERVISION" CLAIM; SUMMARY JUDGMENT GRANTED TO SCHOOL

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Torres v. City of New York

Date: Dec. 27, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

Comment: This is the case of a child hurt in school in an accident during physical education class. We often see these types of "inadequate supervision" claims in schools or camps. They can be hard to prove, because schools are not "insurers" of a child's safety. And so this case lsoes as summary judgment is granted in favor of the school (defense).

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (R. Miller, J.), dated March 30, 2010, as granted those branches of the motion of the defendant Beginning with Children Charter School, and the separate motion of the defendant Tempositions, Inc., doing business as School Professionals, which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

In September 2006 the infant plaintiff was 13 years old and a student at the Beginning with Children Charter School (hereinafter BWC) in Brooklyn. On September 15, 2006, while the infant plaintiff was in a gymnasium during a physical education class, he allegedly was struck in the eye with a tennis ball. The class was being supervised by a substitute teacher employed by Tempositions, Inc., doing business as School Professionals (hereinafter Tempositions). The plaintiffs commenced this action against BWC and Tempositions, among others, to recover damages for personal injuries allegedly caused as a result of the accident.

The Supreme Court properly granted those branches of the separate motions of BWC and Tempositions which were for summary judgment dismissing the complaint insofar as asserted against each of them. "[A] teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstance" (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [internal quotation marks omitted] ). "Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another" (id. at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [internal quotation marks omitted] ). "[T]o impose liability ... based on inadequate supervision, the injuries to the plaintiff must have been foreseeable and proximately related to the absence of adequate supervision" (Nash v. Port Wash. Union Free School Dist., 83 A.D.3d 136, 149, 922 N.Y.S.2d 408 [internal quotation marks omitted] ). Here, BWC and Tempositions each made a prima facie showing of their entitlement to judgment as a matter of law, establishing, prima facie, that the substitute teacher provided adequate supervision, and that any alleged inadequacy in the level of supervision was not a proximate cause of the accident (see Mirand v. City of New York, 84 N.Y.2d at 50-51, 614 N.Y.S.2d 372, 637 N.E.2d 263; Schleef v. Riverhead Cent. School Dist., 80 A.D.3d 743, 915 N.Y.S.2d 506; Paragas v. Comsewogue Union Free School Dist., 65 A.D.3d 1111, 1111-1112, 885 N.Y.S.2d 128). In opposition, the plaintiffs failed to raise a triable issue of fact.

In light of our determination, we need not reach BWC's remaining contentions.

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