| Armellino v Thomase |
| 2010 NY Slip Op 03256 [72 AD3d 849] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Adam Armellino, an Infant, by Heidi Armellino, His Parent andNatural Guardian, et al., Appellants, v Jason Thomase et al., Defendants, and OceansideUnion Free School District, Respondent. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Mahon, J.), entered January 9, 2008, which granted themotion of the defendant Oceanside Union Free School District for summary judgment dismissingthe complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantOceanside Union Free School District for summary judgment dismissing the complaint insofaras asserted against it is denied.
Schools have a duty to "adequately supervise the students in their charge" and are subject toliability for "foreseeable injuries proximately related to the absence of adequate supervision"(Mirand v City of New York, 84 NY2d 44, 49 [1994]). However, schools are not theinsurers of the safety of their students, "perfection in supervision" is not required, and schoolsare not liable for "every thoughtless or careless act by which one pupil may injure another"(Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 304, 306 [1965]). Although aschool must "take energetic steps to intervene . . . if dangerous play comes to itsnotice while children are within its area of responsibility" (id. at 305), "school personnelcannot reasonably be expected to guard against all of the sudden, spontaneous acts that takeplace among students daily" (Mirand v City of New York, 84 NY2d at 49). Thus, astudent's injury which is caused by "the impulsive, unanticipated act of a fellow studentordinarily will not give rise to a finding of negligence absent proof of prior conduct that wouldhave put a reasonable person on notice to protect against the injury-causing act" (id.).
The defendant Oceanside Union Free School District (hereinafter the District) failed to meetits prima facie burden of showing that its failure to supervise was not the proximate cause of theinfant plaintiff's injuries. In reviewing a motion for summary judgment, the evidence presentedby the nonmoving parties, here the plaintiffs, is accepted as true and given the benefit of everyreasonable inference (see Demshick vCommunity Hous. Mgt. Corp., 34 AD3d 518 [2006]; Secof v GreensCondominium, 158 AD2d 591 [1990]). Here, the deposition testimony of the infant plaintiffreveals that at recess, while in summer school, the boys in the third grade class were permitted toseparate from their other classmates and were not provided with any recreational diversions. Theinfant [*2]plaintiff testified that he and his classmates beganthrowing pieces of asphalt from the track at each other, and although this activity was prohibitedby school regulations, the teacher or teachers assigned to supervise recess failed to notice or haltthe activity. The incident escalated, and the infant plaintiff pulled another boy's shirt over hishead. The infant plaintiff ran away, this boy chased him, eventually pushing him down, and theinfant plaintiff sustained a broken leg that resulted in several surgeries. In light of this evidence,the District's motion for summary judgment should have been denied. Skelos, J.P., Covello,Balkin and Sgroi, JJ., concur.