| Gray v South Colonie Cent. School Dist. |
| 2009 NY Slip Op 06069 [64 AD3d 1125] |
| July 30, 2009 |
| Appellate Division, Third Department |
| Dean Gray et al., Individually and as Parents and Guardians ofDavid M. Gray, an Infant, Appellants v South Colonie Central School District et al.,Respondents. |
—[*1] Roemer, Wallens & Mineaux, Albany (Matthew J. Kelly of counsel), forrespondents.
Garry, J. Appeal from an order and judgment of the Supreme Court (McNamara, J.), enteredNovember 3, 2008 in Albany County, which granted defendants' motion for summary judgmentdismissing the complaint.
In November 2005, plaintiffs' son (hereinafter the child), then six years old, broke his elbowwhen he fell from a climbing structure commonly known as monkey bars on the playground ofan elementary school in the Town of Colonie, Albany County. The child later testified that hefell as he tried to swing from the first to the third rung of the structure's horizontal ladder.Plaintiffs commenced this action against the Town, defendant South Colonie Central SchoolDistrict and defendant Board of Education of South Colonie Central School District, allegingthat defendants negligently failed to maintain the ground beneath the monkey bars in areasonably safe condition, negligently failed to supervise the child, and permitted a [*2]private and public nuisance to exist on their premises.[FN1]Defendants moved for summary judgment dismissing the complaint, and Supreme Court grantedthe motion. Plaintiffs now appeal.
The child's father testified that he measured the monkey bars and the depth of the cushioningground cover underneath them shortly after the accident. He found that the monkey bars wereabout 6½ feet high, and he measured a six-inch-deep layer of loose wood chips in the areawhere the child fell, lying on top of a layer of packed-down chips that he did not measure.Plaintiffs assert that this cushioning material was insufficient and that defendants therebybreached their duty as governmental entities "to maintain [their] . . . playgroundfacilities in a reasonably safe condition" (Solomon v City of New York, 66 NY2d 1026,1027 [1985] [internal quotation marks and citation omitted]).
In seeking summary judgment, defendants bore the initial burden to "make a prima facieshowing of entitlement to judgment as a matter of law [by] tendering sufficient evidence toeliminate any material issues of fact from the case" (Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). To that end, they submitted deposition testimony and otherdocumentary evidence demonstrating that the playground was regularly inspected by variousDistrict employees and insurance representatives, that additional wood chips were added underthe monkey bars in August 2005, and that, in the course of a comprehensive inspectionperformed in October 2005, a District employee determined that 12 inches of wood chips werepresent under the monkey bars. The employee alleged by affidavit that the District followedplayground safety guidelines promulgated by the Consumer Product Safety Commission(hereinafter CPSC) and that both the monkey bars' 78-inch height and the depth of thecushioning material underneath them complied with those guidelines. A portion of the CPSCplayground safety handbook containing a table of recommended depths of various types ofcushioning material was attached. This table indicated that when uncompressed wood chips areused, the material should be six inches deep to cushion a structure measuring seven feet tall.
We agree with Supreme Court that this evidence was sufficient to establish defendants'prima facie entitlement to judgment as a matter of law on the ground that the ground cover underthe monkey bars was maintained in a reasonably safe condition (see Padden v County ofSuffolk, 52 AD3d 663, 664 [2008]; Banks v Freeport Union Free School Dist., 302AD2d 341, 341 [2003]). The burden therefore shifted to plaintiffs to submit admissible evidenceestablishing the existence of triable issues of fact (see Winegrad v New York Univ. Med.Ctr., 64 NY2d at 853; Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).
Plaintiffs submitted the affidavits of a school safety consultant and an emergency roomphysician. The consultant's affidavit merely referenced plaintiffs' expert disclosure, in which itwas claimed that defendants should have placed at least nine inches of mulch cover orcushioning material under the monkey bars to comply with CPSC guidelines and that the allegedfailure to do so, combined with negligent supervision, proximately caused the child's injury. Thephysician opined that the child's injuries would probably have been less severe if the monkeybars had been [*3]lower or the cushioning surface deeper.Neither expert inspected the playground or the ground cover, instead basing their views solely ondocumentary evidence, including the deposition testimony, photographs, the measurements takenby the child's father, and medical records (see Banks v Freeport Union Free School Dist.,302 AD2d at 342; see also Dillman v Albany R.C. Diocese, 237 AD2d 767, 768-769[1997]). Their opinions as to the material's composition and depth were based solely upon themeasurements taken by the child's father. These measurements did not reveal the depth of thelayer of the compressed wood chips that the father described under the six-inch-deep loosechips.[FN2]" 'Where [an] expert's ultimate assertions are speculative or unsupported by any evidentiaryfoundation . . . the opinion should be given no probative force and is insufficient towithstand summary judgment' " (Ann JJ. v Schenectady Assn. for Retarded Citizens, 59AD3d 772, 773 [2009], quoting Diaz v New York Downtown Hosp., 99 NY2d 542, 544[2002]). Supreme Court correctly determined that the affidavits were "insufficient to raise atriable issue of fact as to whether the depth of the ground cover was adequate" (Banks vFreeport Union Free School Dist., 302 AD2d at 342; see Grandeau v South ColonieCent. School Dist., 63 AD3d 1484 [2009]; Stocklas v Auto Solutions of Glenville,Inc., 9 AD3d 622, 624 [2004], lv dismissed and denied 4 NY3d 738 [2004]).
As to plaintiffs' claim of negligent supervision, "[d]efendant[s] ha[ve] a duty to adequatelysupervise and instruct the students in [their] care and will be held liable for foreseeable injuriesproximately caused by [their] negligence" (Oakes v Massena Cent. School Dist., 19AD3d 981, 981-982 [2005]). The requisite degree of care is that of a reasonably prudent parentunder similar circumstances (see Fulger v Capital Dist. YMCA, 42 AD3d 694, 695[2007]; Oakes v Massena Cent. School Dist., 19 AD3d at 982). Defendants submitted thechild's deposition testimony stating that before the accident, he had played on the monkey bars,to his recollection, two or four times. At the time of his fall, the child and approximately sixother children were on the playground with an after-school counselor who was located either ona bench or walking in the area. The counselor came to him when he got up from his fall, andmedical care was immediately provided. It is further undisputed that the CPSC playground safetyguidelines describe monkey bars, such as those involved here and 84 inches high, as appropriateplay equipment for children aged 6 to 12.
These facts establish a prima facie basis supporting defendants' assertion that the child wassupervised at the time of the accident, shifting the burden to plaintiffs to demonstrate that thesupervision was inadequate (see Ann JJ. v Schenectady Assn. for Retarded Citizens, 59AD3d at 772-773). The child's mother testified that she always spotted the child when he playedon the monkey bars, but she acknowledged that she did not make any request for suchsupervision nor to impose any other limits on the child's use of the equipment. Plaintiffs'consultant opined that the supervisor should have been closer to the monkey bars, but failed tosupport this claim with any evidence as to her distance from the scene or an opinion regardingthe appropriate distance for sufficient supervision. The assertion of negligent supervision wasthus conclusory and unsupported by any evidentiary foundation (see id. at 773).Defendants' duty to provide adequate supervision was not equivalent to a duty to ensure thechild's safety (see Mirand v City of New York, 84 NY2d 44, 49 [1994]; Fulger vCapital Dist. YMCA, 42 AD3d at 695), nor was the [*4]alleged lack of supervision shown to be the proximate cause of thechild's injury in these circumstances (see Ronan v School Dist. of City of New Rochelle,35 AD3d 429, 430 [2006]). We agree with Supreme Court that plaintiffs failed to demonstratethe existence of any triable issues of fact on this issue.
Finally, plaintiffs' claim sounding in public nuisance is meritless (see Copart Indus. vConsolidated Edison Co. of N.Y., 41 NY2d 564, 568 [1977]; Haire v Bonelli, 57AD3d 1354, 1358 [2008]; Reid v Kawasaki Motors Corp., U.S.A., 189 AD2d 954, 956[1993]). This claim was therefore properly dismissed.[FN3]
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the order and judgmentis affirmed, without costs.
Footnote 1: The County of Albany was alsoa named defendant but, as a result of a motion for summary judgment by the County, whichplaintiffs did not appeal, the complaint was dismissed against it in a separate order.
Footnote 2: Plaintiffs' counsel argues uponappeal that there is a factual issue as to whether the District used wood chips or another product,but this was not developed or demonstrated in the record.
Footnote 3: The cause of action for privatenuisance in plaintiffs' complaint was not referenced in the briefs and, therefore, it appears tohave been abandoned.