| Doyle v Binghamton City School Dist. |
| 2009 NY Slip Op 01565 [60 AD3d 1127] |
| March 5, 2009 |
| Appellate Division, Third Department |
| Thomas M. Doyle, as Parent of Harrison Doyle, an Infant,Appellant, v Binghamton City School District, Respondent. |
—[*1] Coughlin & Gerhart, L.L.P., Binghamton (Rachel A. Abbot of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Rumsey, J.), entered April 7,2008 in Broome County, which granted defendant's motion for summary judgment dismissingthe complaint.
On January 8, 2004, fourth-grader Harrison Doyle was injured while playing freeze tag in aphysical education class held in the gymnasium of one of defendant's elementary schools in theCity of Binghamton, Broome County. The incident occurred when, after Doyle was apparentlyaccidentally knocked to the ground by a fellow classmate in the course of play, a differentclassmate tripped over him as he was trying to rise, causing Doyle's face to strike the floor,resulting in serious injuries to two of his permanent teeth.
Thereafter, plaintiff, Doyle's father, commenced this action against defendant allegingnegligent supervision. Specifically, plaintiff asserts, among other things, that the physicaleducation teacher and the teachers' aide in charge of the approximately 20 students at the time ofthe incident negligently failed to witness the initial collision and intervene, thus preventing thesecond child from tripping over Doyle. After joinder of issue and discovery, defendant movedfor summary judgment dismissing the complaint arguing that a prima facie case was notpresented as a matter of law. Supreme Court granted the motion, prompting this appeal byplaintiff.[*2]
It is undisputed that "[a] school district is obligated toadequately supervise the students in its care and may be held liable for foreseeable injuriesproximately related to inadequate supervision" (Clark v Susquehanna Val. Cent. School Dist., 19 AD3d 926, 927[2005]). Nevertheless, school districts "are not insurers of safety . . . for they cannotreasonably be expected to continuously supervise and control all movements and activities ofstudents; therefore, [they] are not to be held liable for every thoughtless or careless act by whichone pupil may injure another" (Mirand v City of New York, 84 NY2d 44, 49 [1994][internal quotation marks and citations omitted]). Instead, school districts have the duty ofexercising "the same degree of care as would a reasonably prudent parent placed in comparablecircumstances" (Bellinger v BallstonSpa Cent. School Dist., 57 AD3d 1296, 1297 [2008] [internal quotation marks andcitation omitted]).
Here, the fact that the supervising personnel did not witness the incident at the exact time itoccurred is not, standing alone, sufficient to create a triable issue of fact as to negligentsupervision (see e.g. Fulger v CapitalDist. YMCA, 42 AD3d 694, 695 [2007]). Even assuming arguendo that plaintiff couldultimately establish his allegation that the teacher and teachers' aide were conversing at the timeof the incident and such a circumstance could be perceived as negligent supervision, that doesnot end the inquiry. Significantly, plaintiff failed to raise a question of fact that the allegedabsence of adequate supervision was the proximate cause of the injury-causing event, ratherthan, as defendant contends, a "spontaneous and accidental" collision of brief duration involvinga second student that even the most careful supervision could not prevent (Bellinger vBallston Spa Cent. School Dist., 57 AD3d at 1298; see Fulger v Capital Dist.YMCA, 42 AD3d at 695; Foster v New Berlin Cent. School Dist., 246 AD2d 880,881 [1998]).
Furthermore, plaintiff failed to dispute defendant's showing that the teacher-to-student ratiowas adequate and the game itself was not "inherently unsafe" (Fulger v Capital Dist.YMCA, 42 AD3d at 695; see Clark v Susquehanna Val. Cent. School Dist., 19AD3d at 927) or age-inappropriate (seeLindaman v Vestal Cent. School Dist., 12 AD3d 916, 917 [2004]). Nor was there proofof a "history of disciplinary problems or rough play among any of the children involved"(Bellinger v Ballston Spa Cent. School Dist., 57 AD3d at 1298). Consequently, SupremeCourt did not err in granting summary judgment to defendant.
We have examined plaintiff's remaining contentions and find them unpersuasive.
Rose, Kane and Stein, JJ., concur. Ordered that the order is affirmed, without costs.