School Fails to Show It Adequately Supervised Fourth-Grader Injured During Gym Class; Defense Denied Summary Judgment

Case: Talyanna S. (Anonymous) v. Mount Vernon City School District

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

Date: 7/5/12

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

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SCHOOL'S SUMMARY JUDGMENT MOTION DENIED WHERE THREE YEAR-OLD CLAIMS INJURY DUE TO LACK OF PLAYGROUND SUPERVISION

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Facts: When children suffer injury in an accident that occurs during school athletics, recovery can be difficult. The school's catch-all defense, which usually succeeds, is "assumption of the risk." That is, that the student appreciated the risks involved in his or her sport and the injury was foreseeable. In such cases, the school will not be held liable for the happening of the accident. Most such matters are resolved via a defense motion to the court seeking summary judgment dismissing the plaintiff's lawsuit.

This case presents the one work-around that can beat an assumption of the risk defense -- "inadequate supervision" -- and let an accident case survive and go to a jury.

First, the plaintiff here was young, being a fourth-grader.

Second, six or seven different activities were going on at the same time, making gym teacher supervision difficult. And the teacher testified at deposition that one of those activities was a "balance beam," which required (and should have had) more supervision than the other activities.

Third, the defense presented no evidence that the gym teacher provided greater supervision, so as to prevent this accident.

Fourth, this child apparently fell off the balance beam twice before the fall that caused her injury. The teacher did not see her prior falls -- again showing inadequate supervision.

Fifth, there was proof that the infant plaintiff struggled to maintain her balance on the balance board and fell twice before the event allegedly causing her injury.

Held: The defense did not meet its burden. It failed to show that it wasn't negligent in supervising this student's athletic activity.

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