| Bellinger v Ballston Spa Cent. School Dist. |
| 2008 NY Slip Op 10099 [57 AD3d 1296] |
| December 24, 2008 |
| Appellate Division, Third Department |
| Lenore Bellinger, Individually and as Parent and Guardian of Raven N.Simmons, an Infant, Respondent, v Ballston Spa Central School District,Appellant. |
—[*1] Horigan, Horigan & Lombardo, Amsterdam (Timothy Horigan of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered May 5, 2008 inSaratoga County, which denied defendant's motion for summary judgment dismissing the complaint.
Plaintiff's daughter, a fifth grader at Wood Road Intermediate School in the Village of Ballston Spa,Saratoga County, was playing one-hand touch football at recess when she and a fellow teammate, bothrunning toward the same opponent, collided on the field. The teammate's head hit plaintiff's daughter inthe mouth, knocking out three of her teeth and fracturing a fourth. Plaintiff thereafter commenced thisaction alleging negligent supervision on the part of defendant. Following discovery, defendant moved forsummary judgment dismissing the complaint, arguing that plaintiff had failed to prove a prima facie case.Supreme Court denied the motion, finding that material issues of fact existed with regard to whetherdefendant's supervision was negligent and, if so, whether the negligent supervision was the proximatecause of the child's injuries. On defendant's appeal, we now reverse.[*2]
"While schools are not insurers of the safety of their students,they are under a duty to exercise the same degree of care as would a reasonably prudent parent placedin comparable circumstances" (Lindaman vVestal Cent. School Dist., 12 AD3d 916, 916 [2004] [citations omitted]). A plaintiff claimingnegligent supervision must demonstrate both that the defendant breached its duty to provide adequatesupervision under this standard, and that this failure was the proximate cause of the plaintiff's injuries(see Mirand v City of New York, 84 NY2d 44, 49 [1994]; MacCormack v Hudson City School Dist. Bd. ofEduc., 51 AD3d 1121, 1122 [2008]; Snyder v Morristown Cent. School Dist. No.1, 167 AD2d 678, 680 [1990]).
Here, even assuming that plaintiff could demonstrate that the playground supervision wasinadequate at the time of her daughter's injuries, defendant established a prima facie case for summaryjudgment by demonstrating that the alleged breach of negligent supervision was not a proximate causeof the injuries (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "A school is notliable for every thoughtless or careless act by which one pupil may injure another" (Lawes v Boardof Educ. of City of N.Y., 16 NY2d 302, 306 [1965] [citations omitted]); thus, when aspontaneous and unintentional accident happens in just a few moments, we have held that no amount ofsupervision, however intense, can prevent a resulting injury (see Fulger v Capital Dist. YMCA, 42 AD3d 694, 695 [2007];Foster v New Berlin Cent. School Dist., 246 AD2d 880, 881 [1998]; see also Capotosto v Roman Catholic Dioceseof Rockville Ctr., 2 AD3d 384, 385-386 [2003]; Lopez v Freeport Union Free SchoolDist., 288 AD2d 355, 356 [2001]; cf. Shoemaker v Whitney Point Cent. School Dist.,299 AD2d 719, 720-721 [2002], appeal dismissed 99 NY2d 610 [2003]). Here, it isundisputed that there was no history of disciplinary problems or rough play among any of the childreninvolved, and that the collision was spontaneous and accidental. Defendant's experts also opined thatcoeducational one-hand touch football is appropriate for fifth graders, that safety devices such ashelmets or mouth guards are not required during these games, and that even direct supervision couldnot have prevented the collision. Finally, testimony regarding the nature of the accident—anunintentional collision between children playing on the same team—indicates that it could havehappened just as easily in a game of tag, basketball, or any other sport or game in which children wererunning in different directions.
Plaintiff's papers in opposition, even when viewed in the light most favorable to plaintiff, fail to raisea triable issue of fact on the issue of proximate cause (see Zuckerman v City of New York, 49NY2d 557, 562 [1980]; Wood v WatervlietCity School Dist., 30 AD3d 663, 664 [2006]). Plaintiff relies on the expert affidavit of SteveBernheim, who "based on [his] education and training" offered opinions to "a reasonable degree ofrecreational certainty." Specifically, Bernheim opined that "one-hand touch football is an inappropriateactivity for fifth-graders during recess, especially without formal control of the game or the provision ofproper safety equipment" and that "fifth-grade boys should not play touch football with fifth-grade girlsat recess because the boys' development at age 10 is more advanced than the girls'."
To create a material issue of fact through the use of an expert's affidavit, the expert must base his orher opinions upon some "empirical data or foundational facts" (Preston v Peter Luger Enters., Inc., 51 AD3d 1322, 1323 [2008]; see David v County of Suffolk, 1 NY3d525, 526 [2003]; Alger v CVS MackDrug of N.Y., LLC, 39 AD3d 928, 929-930 [2007]; Browne v Big VSupermarkets, 188 AD2d 798, 799 [1992], lv denied 81 NY2d 708 [1993]). Bernheimcites to no formally recognized standard or other empirical evidence to support his conclusions. He ispresident of a consulting firm "which specializes in sports, recreation and educational safety" and hiscurriculum vitae lists numerous board positions, professional memberships and speaking engagements,and describes his involvement with several professional and collegiate sports [*3]teams. His credentials, however, do not indicate that he has experiencewith children in an elementary school setting, either in structured physical education class orunstructured play, or that he has studied child development—both areas to which he purports torender an opinion. His direct experience with young children is summed up as his role as a "youth sportscoach" for unspecified ages and for an unspecified period of time. Although his opinion might beprobative under the "reasonably prudent parent" standard (cf. Lindaman v Vestal Cent. SchoolDist., 12 AD3d at 917), his affidavit here is focused not upon the common sense of the reasonablyprudent parent, but upon unidentified and unsupported standards of supervision, safety and childdevelopment. Accordingly, we conclude that the affidavit of plaintiff's expert lacked probative force andwas insufficient as a matter of law to overcome defendant's motion for summary judgment (seeDavid v County of Suffolk, 1 NY3d at 526; Diaz v New York Downtown Hosp., 99NY2d 542, 545 [2002]; Preston v Peter Luger Enters., Inc., 51 AD3d at 1323).
Mercure, J.P., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the order is reversed,on the law, without costs, motion granted, summary judgment awarded to defendant and complaintdismissed.