| Bloomfield v Jericho Union Free School Dist. |
| 2011 NY Slip Op 00341 [80 AD3d 637] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Debra Bloomfield, Individually and as Mother and NaturalGuardian of Catarina Bloomfield, an Infant, et al., Appellants-Respondents, v JerichoUnion Free School District, Respondent-Appellant. |
—[*1] Mulholland, Minion & Roe, Williston Park, N.Y. (Paul McBride and Christine M. Gibbonsof counsel), for respondent-appellant.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), datedAugust 10, 2009, as granted that branch of the defendant's motion which was for summaryjudgment dismissing so much of the complaint as asserted a cause of action to recover damagesbased upon negligent supervision, and the defendant cross-appeals, as limited by its brief, fromso much of the same order as denied that branch of its motion which was for summary judgmentdismissing so much of the complaint as asserted a cause of action to recover damages based uponpremises liability.
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of thedefendant's motion which was for summary judgment dismissing so much of the complaint asasserted a cause of action to recover damages based upon negligent supervision is denied; and itis further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The infant plaintiff allegedly sustained personal injuries as she attempted to step down fromone of the mats used in the sport of high jump during her gym class. The gym class was beingcovered by a substitute teacher who took the class outside to a football field surrounded by atrack. The substitute teacher gave the students the option of walking around the track or playingtouch football. Most of the students opted to play touch football at one end of the football field.However, the infant plaintiff and three of her friends opted to walk around the track. Afterwalking one lap around the track, the infant plaintiff and her friends approached the substituteteacher and asked if they could go on mats at the other end of the football field. The substituteteacher said yes, but did not give the infant plaintiff or her friends any warnings or instructionsabout the mats.[*2]
The infant plaintiff ascended one of the mats from theside facing the football field. She walked towards the opposite side of the mat, and as she nearedthe edge of the mat, her foot became caught in a hole or tear in the mat. As the infant plaintiffattempted to untangle her foot, she fell to the ground. The substitute teacher was "half thefootball field" away from the infant plaintiff when the accident occurred.
The Supreme Court properly denied that branch of the defendant's motion which was forsummary judgment dismissing so much of the complaint as asserted a cause of action to recoverdamages based upon premises liability (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]). A defendant who moves for summary judgment in a premises liability casehas the initial burden of making a prima facie showing that it neither created the hazardouscondition nor had actual or constructive notice of its existence for a sufficient length of time todiscover and remedy it (see Aguirre vPaul, 54 AD3d 302 [2008]; Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560 [2005]).Although a property owner has a duty to maintain his or her property in a reasonably safecondition (see Basso v Miller, 40 NY2d 233 [1976]), it has no duty to protect or warnagainst an open and obvious condition which, as a matter of law, is not inherently dangerous (see Cupo v Karfunkel, 1 AD3d 48[2003]).
Here, the defendant failed to establish, prima facie, that it did not have notice of the tear inthe mat which proximately caused the infant plaintiff to fall. A jury could reasonably infer fromthe photographs in the record that the condition existed for a sufficient period of time for it tohave been discovered and remedied by the defendant in the exercise of reasonable care (seeGordon v American Museum of Natural History, 67 NY2d 836 [1986]; Salvia v Hauppauge Rte. 111 Assoc.,47 AD3d 791 [2008]).
The defendants also failed to establish, prima facie, that the tear in the mat was open andobvious under the circumstances (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851 [1985]). "The issue of whether a dangerous condition is open and obvious is fact-specific,and usually a question for a jury" (Shahv Mercy Med. Ctr., 71 AD3d 1120 [2010]). "A condition that is ordinarily apparent to aperson making reasonable use of his or her senses may be rendered a trap for the unwary wherethe condition is obscured or the plaintiff is distracted" (id.; see Villano v Strathmore TerraceHomeowners Assn., Inc., 76 AD3d 1061, 1061-1062 [2010]). Further, under thecircumstances presented here, it cannot be said as a matter of law that the tear in the mat was notinherently dangerous (see Aguirre vPaul, 54 AD3d 302 [2008]; Ferber v Treeline Garden City Plaza, LLC, 16 AD3d 453 [2005];Massucci v Amoco Oil Co., 292 AD2d 351 [2002]).
The Supreme Court should have denied that branch of the defendant's motion which was forsummary judgment dismissing so much of the complaint as asserted a cause of action to recoverdamages based upon negligent supervision. The defendant failed to establish, prima facie, that itadequately supervised the infant plaintiff or that its alleged negligent supervision was not aproximate cause of the accident (see Mirand v City of New York, 84 NY2d 44 [1994]).Since the defendant failed to meet its burden as the movant, the burden never shifted to theplaintiffs to submit evidence sufficient to raise a triable issue of fact (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851 [1985]). Covello, J.P., Eng, Chambers and Hall, JJ.,concur.