FOSTER v. NEW BERLIN CENTRAL SCHOOL DISTRICT (1998)

Appeal from an order of the Supreme Court (Ingraham, J.), entered January 13, 1997 in Chenango County, which denied defendant New Berlin Central School District's motion for summary judgment dismissing the complaint against it.

First-grader David Foster was injured on the playground at New Berlin Elementary School on January 6, 1993 chasing defendant Arthur Peek, a fellow student, because Peek had just pushed Foster's brother.   During the chase, Foster tripped and fell and Peek jumped on his leg.   The five classes on recess at the time of the incident were being monitored by three teachers.   Plaintiff's negligence action against defendant New Berlin Central School District (hereinafter defendant) is based, inter alia, on its failure to maintain a safe environment and to provide adequate supervision of the children.   At issue on this appeal is the propriety of Supreme Court's denial of defendant's motion for summary judgment.

 School districts are under a duty to adequately supervise students in their care and will be liable for foreseeable injuries proximately related to the absence of adequate supervision (see, Mirand v. City of New York, 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Tomlinson v. Board of Educ. of City of Elmira, 183 A.D.2d 1023, 583 N.Y.S.2d 664).   They are not, however, insurers of safety and will not be held 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 N.Y.2d 302, 306, 266 N.Y.S.2d 364, 213 N.E.2d 667).  Even assuming that a triable issue of fact may exist with respect to defendant's negligent supervision on the playground, liability does not lie absent a showing that it constituted a proximate cause of Foster's injuries (see, Tomlinson v. Board of Educ. of City of Elmira, supra;  Schlecker v. Connetquot Cent. School Dist. of Islip, 150 A.D.2d 548, 541 N.Y.S.2d 127).

The entire incident between Peek and Foster lasted only a few moments.   Foster's accidental fall was precipitated by the pushing incident between Peek and his brother and promptly culminated in Peek's unanticipated act of jumping on Foster's leg.   Foster denied that any similar incidents occurred between himself and Peek in the past (cf., Maynard v. Board of Educ. of Massena Cent. School Dist., 663 N.Y.S.2d 717;  Rodriguez v. Board of Educ. of City of N.Y., 104 A.D.2d 978, 480 N.Y.S.2d 901).   Moreover, according to Foster, no previous altercation or incident occurred between them on that day (see, Tomlinson v. Board of Educ. of City of Elmira, supra;  cf., Vonungern v. Morris Cent. School, 658 N.Y.S.2d 760).   Given the lack of prior similar conduct on Peek's part and the alacrity with which Foster's injury occurred from the initial push by Peek of Foster's brother, defendant could not have reasonably anticipated or prevented Peek's sudden and spontaneous conduct (see, Danna v. Sewanhaka Cent. High School Dist., 662 N.Y.S.2d 71;  Tomlinson v. Board of Educ. of City of Elmira, supra), which was the sole proximate cause of Foster's injuries (see, Rock v. Central Sq. School Dist., 113 A.D.2d 1008, 494 N.Y.S.2d 579).   Since “the manner in which [Foster's] injury occurred could have happened even if [the children] had been supervised” (Walsh v. City School Dist. of Albany, 237 A.D.2d 811, 812, 654 N.Y.S.2d 859, 860), summary judgment should have been granted to defendant.

ORDERED that the order is reversed, on the law, without costs, motion granted, summary judgment awarded to defendant New Berlin Central School District and complaint dismissed against it.

CARPINELLO, Justice.

CARDONA, P.J., and MERCURE, YESAWICH and PETERS, JJ., concur.