| Garman v East Rochester School Dist. |
| 2007 NY Slip Op 10212 [46 AD3d 1354] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Kaley Garman, Appellant, v East Rochester School District et al.,Respondents. |
—[*1] Osborn, Reed & Burke, LLP, Rochester (Aimee La Fever Koch of counsel), fordefendant-respondent East Rochester School District. Petrone & Petrone, P.C., Buffalo (Soo-Young Chang of counsel), for defendant-respondentMonroe #1 BOCES.
Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), enteredOctober 16, 2006 in a personal injury action. The order granted the motion of defendant EastRochester School District and the cross motion of Monroe #1 BOCES for summary judgmentdismissing the complaint and denied the motion of plaintiff for partial summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by denying the motion of defendant East Rochester School District and thecross motion and reinstating the complaint and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries she sustainedduring a senior class field trip to an obstacle course operated by defendant Monroe #1 BOCES(BOCES). Plaintiff was unable to complete a "toad stool" obstacle, which required her to swingon a rope across a distance of eight to nine feet and to land on a series of logs. She attempted toswing across the obstacle while riding on the back of another student but lost her grip and fell,landing on her head.
Defendant East Rochester School District (District) moved and BOCES cross-moved forsummary judgment dismissing the complaint. In granting the motion and cross motion, SupremeCourt determined as a matter of law that plaintiff assumed the risk of injury as a result of hervoluntary participation in the obstacle course activity. That was error, and we therefore modifythe order accordingly. The element of risk assumed by plaintiff does not relieve defendants oftheir obligation to use "reasonable care to guard against a risk which might reasonably beanticipated" (Havens v Kling, 277 AD2d 1017, 1018 [2000]; see Hochreiter vDiocese of Buffalo, 309 AD2d 1216, 1217 [2003]). Here, the chairperson of the physicaleducation department at BOCES and an employee of BOCES who was present at the toad stoolobstacle prior to plaintiff's injury both testified at their depositions that it would not beappropriate for students to swing in tandem on [*2]the ropeacross that obstacle. Indeed, the BOCES employee testified that he would not have allowedplaintiff to swing on the back of another student had he been present at the obstacle. We note,however, that the District employee who was supervising the activity testified at her depositionthat she assisted plaintiff in climbing on the other student's back. Thus, even assuming, arguendo,that plaintiff voluntarily assumed the risks inherent in performing the toad stool obstacle, weconclude that there is a triable issue of fact on the record before us whether defendants "failed toprovide proper supervision of the [obstacle activity], thereby exposing plaintiff to unreasonablyincreased risks of injury" (Sheehan v Hicksville Union Free School Dist., 229 AD2d1026 [1996]; see Royal v City of Syracuse, 309 AD2d 1284 [2003]).Present—Hurlbutt, J.P., Gorski, Martoche, Lunn and Peradotto, JJ.