| Simmons v Saugerties Cent. School Dist. |
| 2011 NY Slip Op 01773 [82 AD3d 1407] |
| March 10, 2011 |
| Appellate Division, Third Department |
| William H. Simmons, an Infant, by William A. Simmons et al., hisParents and Guardians, et al., Respondents, v Saugerties Central School District,Appellant. |
—[*1] Basch & Keegan, L.L.P., Kingston (Derek J. Spada of counsel), for respondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Connolly, J.), entered June 18,2010 in Ulster County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff William H. Simmons (hereinafter plaintiff) was injured when he stepped into a largehole while playing touch football in the "bus circle" during recess at defendant's high school.Defendant's superintendent of buildings and grounds indicated that the bus circle was the area infront of the high school where the buses picked up the students and that students also playedthere, primarily during lunch time. Plaintiff testified that students were permitted to go outside tothe bus circle during recess, as long as they remained within the sight of the adult monitors. Atthe time of his injury in February 2004, plaintiff was a 16-year-old sophomore at the high schooland had played touch football nearly every day of that school year on the grassy bus circle.
Plaintiffs commenced this personal injury action against defendant, alleging negligent [*2]supervision. Following joinder of issue, defendant moved forsummary judgment dismissing the complaint. Defendant appeals from Supreme Court's denial ofthe motion, and we now affirm.
Under the primary assumption of risk doctrine, participants who freely and knowinglyengage "in a sport or recreational activity . . . consent[ ] to those commonlyappreciated risks which are inherent in and arise out of the nature of the sport generally and flowfrom such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Trupia v Lake George Cent. SchoolDist., 14 NY3d 392, 396 [2010]). Risks inherent in a sport generally include "those. . . associated with the construction of the playing surface and any open andobvious condition on it" (Lincoln vCanastota Cent. School Dist., 53 AD3d 851, 852 [2008] [internal quotation marks andcitations omitted]; accord McGrath vShenendehowa Cent. School Dist., 76 AD3d 755, 756 [2010]; see Maddox v City ofNew York, 66 NY2d 270, 277 [1985]). This doctrine, however, "is not an absolute defensebut a measure of the defendant's duty of care" (Benitez v New York City Bd. of Educ., 73NY2d 650, 657 [1989] [internal quotation marks and citations omitted]). In assessing that duty,we are mindful that the participant must "have not only knowledge of the injury-causing defectbut also appreciation of the resultant risk, . . . [which is] assessed against thebackground of the skill and experience of the particular plaintiff" (Morgan v State of NewYork, 90 NY2d at 486 [internal quotation marks and citations omitted]).
In that regard, the Court of Appeals has recently cautioned that "[l]ittle would remain of aneducational institution's obligation . . . to supervise the children in its charge ifschool children could generally be deemed to have consented in advance" to the dangers arisingfrom their risky or imprudent conduct (Trupia v Lake George Cent. School Dist., 14NY3d at 396 [citation omitted]). Indeed, it has long been held that although schools supervisingathletic or recreational activities do not owe student athletes "the more protective duty andstandard of care of a prudent parent" (Benitez v New York City Bd. of Educ., 73 NY2d at656), schools remain obligated to "exercise ordinary reasonable care to protect student athletesvoluntarily involved in extracurricular sports from unassumed, concealed or unreasonablyincreased risks" (id. at 658; accord Fintzi v New Jersey YMHA-YWHA Camps,97 NY2d 669, 670 [2001]). Thus, we have held that a school's negligent supervision mayconstitute a failure to exercise reasonable care in protecting a student from an unreasonablyincreased risk (see e.g. Ballou vRavena-Coeymans-Selkirk School Dist., 72 AD3d 1323, 1325 [2010]; Kane v NorthColonie Cent. School Dist., 273 AD2d 526, 527 [2000]). That is, a student will not bedeemed to have assumed an unreasonably increased risk arising from a school's failure to provideadequate supervision (see Trupia v Lake George Cent. School Dist., 14 NY3d at 396).
In addition, "the doctrine of assumption of risk does not exculpate a landowner," including aschool, "from liability for ordinary negligence in maintaining a premises" (Sykes v County ofErie, 94 NY2d 912, 913 [2000]; see Morgan v State of New York, 90 NY2d at488-489). Contrary to defendant's argument, the open and obvious nature of the large hole in thebus circle and plaintiff's allegedly long-standing knowledge of it does not bar inquiry intowhether the allegedly dangerous condition resulted from defendant's negligent maintenance of itsproperty (see Sykes v County of Erie, 94 NY2d at 913; Morgan v State of NewYork, 90 NY2d at 482, 488). Defendant misapprehends the scope of the primary assumptionof risk doctrine in arguing that a voluntary participant in a sport or recreational activity consentsto all defects in a playing field so long as the defects are either known to the plaintiff oropen and obvious. The doctrine, as defined by the Court of Appeals, does not extend so far.Rather, while "knowledge plays a role" in "determining the extent of the threshold duty of care,"it is "inherency [that] is the sine [*3]qua non" (Morgan v Stateof New York, 90 NY2d at 484). As that Court has emphasized, "[o]ur precedents do not goso far as to exculpate sporting facility owners of [the] ordinary type of alleged negligence" offailure to maintain their premises in good repair (id. at 488-489).
Here, plaintiffs presented evidence that the hole, which was approximately a foot in diameterand a foot deep, had been in existence for at least 18 months prior to plaintiff's accident. Weagree with Supreme Court that a hole of this size is "not automatically an inherent risk of a sportas a matter of law for summary judgment purposes[, but] may qualify as and constitute anallegedly negligent condition occurring in the ordinary course of any property's maintenance[,]. . . implicat[ing] typical comparative negligence principles" (id. at 488;see Ryder v Town of Lancaster, 289 AD2d 995, 995-996 [2001]; Henig v HofstraUniv., 160 AD2d 761, 762-763 [1990]). That is, there are questions of fact regardingwhether defendant's negligent maintenance of the bus circle "created a dangerous condition overand above the usual dangers that are inherent in the sport" of touch football (Owen v R.J.S.Safety Equip., 79 NY2d 967, 970 [1992]; see Clark v State of New York, 245 AD2d413, 413 [1997]; see also Haider vZadrozny, 61 AD3d 1077, 1079 [2009]; Pantalone v Talcott, 52 AD3d 1148, 1149 [2008]; cf. Martin v State of New York, 64AD3d 62, 64-65 [2009], lv denied 13 NY3d 706 [2009]; Verro v New YorkRacing Assn., 142 AD2d 396, 400-401 [1989], lv denied 74 NY2d 611 [1989]).
In any event, although photographs of the hole reveal it to have been open and obvious, andplaintiff submitted an affidavit indicating that the hole was in existence "for a long period" oftime before his fall, his knowledge of the risk presented by the hole is not dispositive in thisnegligent supervision case (see Lapa v Camps Mogen Avraham, Heller, Sternberg, 280AD2d 858, 859 [2001]; Kane v North Colonie Cent. School Dist., 273 AD2d at 527-528;see also Morgan v State of New York, 90 NY2d at 484). Rather, we must consider theevidence—including plaintiff's age, the limited areas in which he was permitted to goduring his lunch recess, the presence of adult monitors, and the school's knowledge that childrenplayed in the bus circle despite the open and obvious hole—in the light most favorable toplaintiffs as the nonmoving parties. In our view, the foregoing raises additional questions of factregarding "whether defendant's supervision was inadequate and resulted in the failure to exercisereasonable care to protect [plaintiff] from an unreasonably increased risk" (Kane v NorthColonie Cent. School Dist., 273 AD2d at 528; accord Ballou vRavena-Coeymans-Selkirk School Dist., 72 AD3d at 1326; see Lapa v Camps MogenAvraham, Heller, Sternberg, 280 AD2d at 859; see also Larson v Cuba Rushford Cent. School Dist., 78 AD3d1687, 1688 [2010]).
Peters, Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed, withcosts.