| Peuplie v Longwood Cent. School Dist. |
| 2008 NY Slip Op 02810 [49 AD3d 837] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Michael Peuplie et al., Appellants, v Longwood CentralSchool District, Respondent. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Doyle, J.), dated July 20, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was for summary judgment dismissing so much of thefirst cause of action as sought to recover damages based upon the defendant's alleged negligentsupervision and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, with costs to the plaintiffs.
On October 10, 2000 the infant plaintiff , then in the third grade, was injured duringlunchtime recess when he fell from a flexible grid climbing device (hereinafter the cargo climber)on the school playground. The plaintiffs commenced the instant action against the defendant,Longwood Central School District (hereinafter the School District), alleging, inter alia, that theinfant plaintiff was injured as a result of negligent supervision and a dangerous and defectivecondition in the cargo climber.
A staff assistant employed by the School District was the only adult supervising the infantplaintiff's class of 25 to 28 students at the time of his fall. According to her deposition testimony,the staff assistant previously instructed the children to hold onto any climbing equipment withboth hands and told them she would blow her whistle twice if a child was doing somethingwrong. While [*2]standing approximately 30 feet away from thecargo climber, the staff assistant observed the infant plaintiff descend with his back to her, facingthe cargo climber while holding on with both hands. When he tried to step off, his foot becameentangled in a lower rung and he fell. She estimated that she had been observing the infantplaintiff for 10 seconds, but that she could not get to him while he was falling because the fallhappened very quickly.
The infant plaintiff testified that, just before the accident, he saw the staff assistant, but hecould not estimate her distance from him. He held the vertical posts on either side of the cargoclimber and descended it facing outward, away from the equipment. After descending two rungs,he could no longer hold onto the posts. As he tried to step down to the next rung, his foot becameentangled and he fell onto his back.
The Supreme Court granted summary judgment to the School District, determining, interalia, that any negligent supervision was not a proximate cause of the accident, which happenedtoo quickly to be prevented. We modify.
While the School District made a prima facie showing of its entitlement to judgment as amatter of law with respect to so much of the first cause of action as sought damages based uponan alleged breach of the School District's duty of supervision (see David v County of Suffolk, 1 NY3d 525, 526 [2003];Mirand v City of New York, 84 NY2d 44, 49 [1994]), the plaintiff, in response, raisedtriable issues of fact as to whether that duty was breached, and, if so, as to whether a breach ofduty was a proximate cause of the accident. In this regard, there was conflicting testimony as towhether the infant plaintiff descended the cargo climber facing outward, away from theapparatus. Photographs and descriptions of the flexible cargo climber in the record demonstratethat a child facing outward while descending would have difficulty holding onto the large verticalposts on either side or onto the rungs behind him or her, and thus a jury would be entitled todetermine that use of the cargo climber in this manner was unsafe, relying upon its "owncommon experience" (Mirand v City of New York, 84 NY2d at 51). Further, issues offact exist as to whether the staff assistant, who, as noted above, would blow a whistle uponobserving a child engaging in unsafe behavior, observed this unsafe descent, and as to whethershe had sufficient time to warn the infant plaintiff or otherwise attempt to prevent a foreseeableinjury (see Clark v Susquehanna Val.Cent. School Dist., 19 AD3d 926, 928 [2005]; cf. David v County of Suffolk, 1NY3d at 526). Accordingly, the Supreme Court should have denied that branch of the SchoolDistrict's motion which was for summary judgment dismissing so much of the first cause ofaction as sought damages based upon the School District's alleged negligent supervision.
In contrast, the Supreme Court properly granted that branch of the School District's motionwhich was for summary judgment dismissing so much of the first cause of action as sought torecover damages based upon a dangerous or defective condition. The School District made aprima facie showing of its entitlement to judgment as a matter of law with respect to so much ofthe first cause of action as sought damages based upon a dangerous or defective condition byshowing that the cargo climber was not inherently unsafe or defective (see Davidson vSachem Cent. School Dist., 300 AD2d 276, 276-277 [2002]). In opposition, the plaintiffs,who submitted the affidavit of an expert who relied upon nonmandatory guidelines promulgatedby the Consumer Product Safety Commission, failed to raise a triable issue of fact (see Capotosto v Roman Catholic Dioceseof Rockville Ctr., 2 AD3d 384, 386 [2003]; Davidson v Sachem Cent. SchoolDist., 300 AD2d at 277; Merson v Syosset Cent. School Dist., 286 AD2d 668, 670[2001]). Accordingly, the Supreme Court properly granted that branch of the School District'smotion which was for summary judgment dismissing so much of [*3]the first cause of action as sought to recover damages based upon adangerous or defective condition.
The plaintiffs' remaining contentions are without merit or need not be reached in light of ourdetermination. Miller, J.P., Covello, Eng and Chambers, JJ., concur.