SCHOOL NOT LIABLE FOR INJURY TO 10TH GRADER DURING GYM CLASS; DEFENSE GRANTED SUMMARY JUDGMENT OF DISMISSAL

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

Case: Lilian Pedroza v. The City of New York

Date: Feb. 2, 2012

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

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CHILD STRUCK WITH TENNIS BALL DURING GYM CLASS LOSES "INADEQUATE SUPERVISION" CLAIM; SUMMARY JUDGMENT GRANTED TO SCHOOL(Posted by Queens accident attorney Gary E. Rosenberg on Jan 22, 2012)

HIGH SCHOOLER HIT IN FACE BY TEAMMATE'S SOFTBALL BAT; THIS ACCIDENT CASE DISMISSED AFTER TRIAL DUE TO "ASSUMPTION OF THE RISK" (Posted by Queens accident attorney Gary E. Rosenberg on Oct 9, 2011)

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 18, 2011, which, in an action alleging, inter alia, inadequate supervision, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law, in this action where plaintiff's son, a 10th‑grade student, was injured after he lost his balance and fell while attempting to perform a martial‑art maneuver during a physical education self‑defense class at his school. His own testimony as to how the accident occurred demonstrates that no additional supervision could have prevented his injury (see Esponda v. City of New York, 62 A.D.3d 458, 460, 878 N.Y.S.2d 330 [2009]; McCollin v. Roman Catholic Archdiocese of N.Y., 45 A.D.3d 478, 479, 846 N.Y.S.2d 158 [2007]; compare Llauger v. Archdiocese of N.Y., 82 A.D.3d 656, 920 N.Y.S.2d 45 [2011]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether defendants failed to exercise the care "as a parent of ordinary prudence would observe in comparable circumstances" (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994] [internal quotation marks and citation omitted]). Moreover, plaintiff did not submit evidence indicating that defendants violated a statute, regulation, or mandatory guideline stating that floor mats or bare feet were necessary during the practice of the martial art being performed by students (see Scarito v. St. Joseph Hill Academy, 62 A.D.3d 773, 775, 878 N.Y.S.2d 460 [2009]; Capotosto v. Roman Catholic Diocese of Rockville Ctr., 2 A.D.3d 384, 386, 767 N.Y.S.2d 857 [2003]).

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