| Hansen v Bath & Tennis Mar. Corp. |
| 2010 NY Slip Op 03872 [73 AD3d 699] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Brittany K. Hansen, Respondent, v Bath & Tennis Marina Corp. etal., Respondents, and Westhampton Beach Union Free School District,Appellant. |
—[*1] Kujawski & DelliCarpini, Deer Park, N.Y. (Jeffrey D. Hummel of counsel), forplaintiff-respondent. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy andBarry L. Manus of counsel), for defendants-respondents Bath & Tennis Marina Corp., Atlantica,LLC, Tierra Mar, Inc., and Nicole Morgan.
In an action to recover damages for personal injuries, the defendant Westhampton BeachUnion Free School District appeals from an order of the Supreme Court, Suffolk County(Pastoressa, J.), entered April 23, 2009, which denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, and the motion of the defendantWesthampton Beach Union Free School District for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it is granted.
In March 2006 the plaintiff, an 18-year-old senior at Westhampton Beach High School, wasa member of the school's Rotary Interact Club (hereinafter the Interact Club). Members of theInteract Club performed community service in conjunction with the defendant Rotary Club ofWesthampton, Inc. (hereinafter the Rotary Club). Interact Club members were required to attendweekly meetings at the school and, through their participation in the Interact Club's activities,could satisfy the school health class's community service requirement. The Interact Club'sfaculty adviser was Amy Demchak, a business teacher at the high school.
On Sunday, March 26, 2006, members of the Interact Club were scheduled to assist theRotary Club at a spaghetti dinner to be held at a restaurant owned by the defendant Atlantica,LLC (hereinafter Atlantica), at the premises of the defendant Bath & Tennis Marina Corp. Theplaintiff had not [*2]volunteered to participate in the event whenDemchak asked for volunteers at an Interact Club meeting. Nevertheless, she agreed toparticipate when, on the day of the event, she was asked to do so by another Interact Clubmember, her friend, the defendant Brittany Bauer. Demchak was present at the restaurant for partof the event "to check in and see the students" and was aware that student volunteers wereserving food from chafing dishes. The chafing dishes were heated by sterno cannisters. Anemployee of Atlantica asked the plaintiff and Bauer to inform an employee when any sternocannister went out. At some point after Demchak left the premises, one of the sterno cannisterswent out, and an employee of the restaurant obtained a new one from a cabinet and lit it byholding an already lit cannister to it. When another cannister went out, one of the Interact Clubmembers informed an employee, who obtained a new one from the cabinet and put it on thetable, but then walked away. Bauer attempted to light it the same way as the employee had done,but she dropped both cannisters when flames appeared, and the plaintiff, who was standingnearby, allegedly sustained burns. The plaintiff commenced this action against variousindividuals and entities, including the Westhampton Beach Union Free School District(hereinafter the district). After discovery was completed, the district moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it. TheSupreme Court denied the motion. We reverse.
As the party seeking summary judgment, the district had the initial burden of establishing itsprima facie entitlement to such relief (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). In attempting to meet this burden, the district argued, inter alia, that it had no duty tosupervise the plaintiff at the dinner because the dinner was an off-campus event that the districtdid not run. Further, it argued that, in any event, the plaintiff's injuries were not foreseeablebecause it was not foreseeable that Bauer would attempt to light a new cannister herself.
Schools have a duty to adequately supervise students in their charge and will be held liablefor foreseeable injuries proximately related to the absence of adequate supervision (seeMirand v City of New York, 84 NY2d 44, 49 [1994]). This duty stems from the school'sphysical custody over students and is based on the rationale that, by exercising such custody, theschool has deprived the students of the protection of their parents or guardians (see Pratt vRobinson, 39 NY2d 554, 560 [1976]; Restatement [Second] of Torts § 320, Commentb). It follows, then, that the school's "duty to protect its students from negligence iscoextensive with and concomitant to its physical custody and control over its students" and that,"[t]herefore, once students leave their school's orbit of authority, parents are free to resumecustodial control and the school's custodial duty ceases" (Banks v New York City Dept. of Educ., 70 AD3d 988, 990[2010]). Although during school hours the standard is that of the reasonably prudent parent, alesser standard, that of the reasonable and prudent person, is applicable in the context of astudent's voluntary participation in an intramural or extracurricular school sport (see Reed vPawling Cent. School Dist., 245 AD2d 281 [1997]).
Here, the district met its prima facie burden of establishing its entitlement to judgment as amatter of law. Even assuming that it had a duty to supervise the members of the Interact Club atthe off-campus dinner (cf. Burrows v Union Free School Dist. of Tarrytowns, 250 AD2d799, 799-800 [1998]), the district established, prima facie, that it could not foresee that Bauerwould attempt to light a cannister herself (see Mirand v City of New York, 84 NY2d at49; In-Ho Yu v Korean Cent. Presbyt. Church of Queens, 303 AD2d 369, 369-370[2003]). In opposition, no triable issue of fact was raised (id.). Consequently, the motionshould have been granted. Fisher, J.P., Dillon, Dickerson and Eng, JJ., concur.