| Harris v Five Point Mission\MCamp Olmstedt |
| 2010 NY Slip Op 04547 [73 AD3d 1127] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Nikki Harris, Respondent, v Five PointMission—Camp Olmstedt, Appellant. |
—[*1]
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Schack, J.), dated July 17, 2009, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On the morning of July 29, 2006, the then 13½-year-old infant, Devante Harris(hereinafter Devante), allegedly was injured while playing soccer at the sleepaway summer campoperated by the defendant, Five Point Mission—Camp Olmstedt. According to Devante'sdeposition testimony, the accident happened over a 15-second period of time. After Devante fellwhile attempting to kick a soccer ball, another camper, attempting to kick the same ball, madecontact with Devante's leg and then fell on Devante's leg. At the time of the accident, there weretwo counselors supervising the soccer game, while acting as opposing goalies, one of whom wasonly 12 feet away from Devante when the accident occurred. Furthermore, during the hourbefore the accident occurred, neither Devante nor anyone else fell during the game. According tothe deposition testimony of the camp director, Nolan Walker, the camp hired a privatelandscaping company to maintain the field. Additionally, in the two weeks leading up to the dateof the accident, he did not observe any defects in the field.
Schools or camps are not insurers of the safety of their students or campers, as they "cannotreasonably be expected to continuously supervise and control all of their movements andactivities" (Cohn v Board of Educ. of Three Vil. Cent. School Dist., 70 AD3d 622, 623[2010]; see Mirand v City of New York, 84 NY2d 44, 49 [1994]). Rather, schools andcamps owe a duty to supervise their charges and will only be held liable for foreseeable injuriesproximately caused by the absence of adequate supervision (see Mirand v City of NewYork, 84 NY2d at 49; Doe v Department of Educ. of City of N.Y., 54 AD3d 352,353 [2008]; Paca v City of New York, 51 AD3d 991, 992 [2008]). Moreover, even if anissue of fact exists as to negligent supervision, liability does not lie absent a showing that suchnegligence proximately caused the injuries sustained (see Odekirk v Bellmore-Merrick Cent.School Dist., 70 AD3d 910 [2010]; Siegell v [*2]HerricksUnion Free School Dist., 7 AD3d 607 [2004]). "Where an accident occurs in so short a spanof time that even the most intense supervision could not have prevented it, any lack ofsupervision is not the proximate cause of the injury and summary judgment in favor of the. . . defendant[ ] is warranted" (Convey v City of Rye School Dist., 271AD2d 154, 160 [2000]; see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d910 [2010]; Paca v City of New York, 51 AD3d at 993; Capotosto v Roman CatholicDiocese of Rockville Ctr., 2 AD3d 384, 385-386 [2003]).
The defendant made a prima facie showing of its entitlement to judgment as a matter of law.It established, by way of Devante's deposition testimony, that it did not negligently supervisehim during the soccer game in which he was injured (see Mirand v City of New York, 84NY2d at 49; Calcagno v John F. Kennedy Intermediate School, 61 AD3d 911, 912[2009]). It also established that it did not negligently maintain the soccer field where the accidentoccurred (see Lopez v Freeport Union Free School Dist., 288 AD2d 355, 356 [2001]).
In response, the plaintiff failed to show the existence of a triable issue of fact. Devante'saffidavit submitted in opposition to the motion merely raised a feigned issue of fact designed toavoid the consequences of his earlier deposition testimony, and thus was insufficient to defeatthe defendant's motion for summary judgment dismissing the complaint (see Denicola vCostello, 44 AD3d 990 [2007]). The affidavit of Devante's mother, the plaintiff, NikkiHarris, also was insufficient to defeat the defendant's motion, as she did not have personalknowledge of the facts underlying the claim and relied upon inadmissible hearsay in heraverments (see New S. Ins. Co. v Dobbins, 71 AD3d 652 [2010]).
The plaintiff's expert's affidavit also was insufficient to raise a triable issue of fact as towhether the defendant's failure to provide Devante with shin guards constituted negligence. Theaffidavit improperly relies on the version of the events set forth in Devante's affidavit inopposition to the motion and not upon his deposition testimony. Furthermore, in concluding thatthe defendant summer camp was negligent in failing to provide Devante with shin guards duringthe soccer game, the expert failed to allege that sleepaway summer camps generally provide shinguards to campers during informal soccer games like the one at issue (see Diaz v New YorkDowntown Hosp., 99 NY2d 542, 545 [2002]; Walker v Commack School Dist., 31AD3d 752 [2006]). Nor does he allege, based upon his personal knowledge or experience, thatthe rules of college, high school, or youth soccer leagues, which he contends require the use ofshin guards, have been implemented by or are the generally accepted practice in informalsummer camp soccer games such as the one in which Devante was injured (see Diaz v NewYork Downtown Hosp., 99 NY2d at 545; Walker v Commack School Dist., 31AD3d 752 [2006]).
Accordingly, the defendant's motion for summary judgment dismissing the complaint shouldhave been granted (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325[1986]). Rivera, J.P., Florio, Angiolillo and Lott, JJ., concur.