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A.C. an infant, BY his Mother and Natural Guardian, Edna Lizeth FAJARDO, Plaintiffs, v. The BRENTWOOD UNION FREE SCHOOL DISTRICT and the Twin Pines Elementary School, Defendants.
The following papers were read upon this motion:
Notice of Motion/Order to Show CauseAnswering Paper
The infant plaintiff and his mother bring this personal injury action to recover damages for injuries that the infant plaintiff sustained when he fell off a zip line playground apparatus while he was a second-grade student at Twin Pines Elementary School, which is located within the Brentwood Union Free School District. The incident occurred on September 26, 2013.
The defendants seek summary judgment dismissal of the complaint, with prejudice. Plaintiffs have not submitted any opposition to the instant motion; however, defendants must nevertheless establish their prima facie entitlement to summary judgment as a matter of law (see Levin v. Khan, 73 AD3d 991 [2d Dept 2010]; Kjono v. Fenning, 69 AD3d 581[2d Dept 2010] ).
Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007] ). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiffs (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005] ). “The Supreme Court's function on a motion for summary judgment is issue finding, not issue determination” (Trio Asbestos Removal Corp. v. Gabriel & Sciacca Certified Public Accountants, LLP, 164 AD3d 864, 865 [2d Dept 2018] ).
Plaintiffs' Bill of Particulars alleges that defendants permitted the infant plaintiff to use the apparatus “without prior instruction and without supervision,” resulting in injury to the infant plaintiff's arms, including fractured elbows. Plaintiffs also allege the existence of dangerous and defective conditions, namely failing to have proper padding underneath the apparatus and failing to have “proper non-slip material” on the handle of the zip line apparatus.
In support of their motion, defendants submit, inter alia, the pleadings, photographs of the apparatus, sworn testimony of the infant plaintiff, his mother, and the physical education teacher on the playground at the time of the incident, and affidavits from a field investigator, the school principal, the District's Assistant Superintendent, and a certified playground safety inspector.
A property owner is charged with the duty to maintain the premises in a reasonably safe condition (Katz v. Westchester County Healthcare Corp., 82 AD3d 712, 713 [2d Dept 2011] ). Of course, a property owner may be held liable for damages resulting from a hazardous condition on its premises if it created the hazardous condition or had either actual or constructive notice of the condition in sufficient time to remedy it (Gordon v. American Museum of Natural History, 67 NY2d 836, 837  ). To constitute constructive notice, the defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy it (Borenkoff v. Old Navy, 37 AD3d 749, 750 [2d Dept 2007] ).
To be entitled to summary judgment in a premises liability case, a defendant owner is required to show, prima facie, that he/she/it maintained the premises in a reasonably safe condition and that he/she/it did not have notice of, or create, a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises (Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061 [2d Dept 2010] ).
Based upon a review of the submitted evidence, including the affidavits of David Indellicati, field investigator, Mike Cruz, Assistant Plant Facilities Director, Robert McCarthy, Principal, Stacy O'Connor, Assistant Superintendent, and Margaret A. Payne, Certified Playground Safety Inspector, this Court determines that there was no dangerous or defective condition on the subject apparatus referred to as the monkey bars/zip line. The infant plaintiff's testimony makes clear that he was using the zip line portion of the apparatus when he fell.
Defendants' evidence establishes that the engineered wood fiber ground cover underneath the apparatus conformed to all applicable safety standards in terms of composition and depth on the date of the incident, that the apparatus itself was in “excellent condition” according to Mr. Indellicati who inspected it on January 7, 2014, that, according to Ms. Payne, there are no specifications, standards or requirements for non-slip material on the handles of track rides such as the zip line involved in this incident, and that the apparatus was designated appropriate for use by children between the ages of five (5) and twelve (12). Ms. Payne further states that the purpose of the ground cover under apparatus of these types is to reduce the instance of sustaining life-threatening head injuries, not to eliminate all injuries, and that a dangerous or defective condition did not exist at the time and place of plaintiff's fall.
The submitted evidence also establishes that defendants did not receive any complaints about the subject apparatus from anyone, including from the infant plaintiff or his mother, at any time prior to the incident giving rise to this action. Thus, as to the claim of a defective and dangerous condition as asserted in the Bill of Particulars, the defendants have established their prima facie entitlement to summary judgment as a matter of law; however, that does not conclude the Court's analysis.
Regarding plaintiffs' claim of negligent supervision, it is well-settled that schools are obligated to exercise such care of their students as a parent of ordinary prudence would observe in comparable circumstances (David v. County of Suffolk, 1 NY3d 525, 526  ). A school is not, however, an insurer of safety, and cannot be expected to continuously supervise and control all of the students' movements and activities (Mirand v. City of New York, 84 NY2d 44, 48  ).
Here, defendants' own submissions raise an issue of fact as to whether the infant plaintiff was properly instructed on the use of the zip line apparatus prior to his fall, and the failure to properly instruct is one of plaintiffs' claims set forth in their Bill of Particulars. A school district may breach its duty to students by failing to instruct them on the safe use of playground equipment (Merson v. Syosset Central School District, 286 AD2d 668 [2d Dept 2001] ).
There is contradictory testimony from the infant plaintiff and the supervising physical education teacher as to whether any instruction was given. The teacher, Martino Sottile, testified that he was a leave replacement teacher supervising twenty-four (24) children during the physical education period when the incident occurred. He testified that “24 or around that” number of children is likely the maximum number of second-grade students that teachers were permitted to supervise by themselves.
Mr. Sottile also testified that he learned how to instruct others on the subject playground equipment by watching a “peer teacher” instruct students. Mr. Sottile did not specify when he received that training from his “peer teacher.”
According to Mr. Sottile, on the date of the subject incident, he first reviewed “safety protocol” with the second-grade class that included the infant plaintiff. These second-graders were between seven (7) and eight (8) years old. The safety protocol encompassed “[a]ll the rules, ethics, how to behave, how to use each piece of equipment.” After the instructions were given, the children were allowed to play for about ten minutes on the playground. When asked what specific instructions he gave regarding the zip line, Mr. Sottile testified that he told the children that only one person could use the equipment at a time; no pushing; no one underneath the zip line while it was in use; two hands on the zip line; make sure no one is on the other platform so that, upon landing, no one would be kicked off the platform.
Mr. Sottile was standing on a cement walkway, approximately fifteen (15) feet from the subject apparatus, so that he could observe the entire playground. He testified that he observed the children using the zip line, and if he had observed that any of them were not using the equipment correctly, he would “make sure [that he] instructed them otherwise.” Apart from that, he did not provide any further instruction to the children as they were using the apparatus; he had already instructed them in its use prior to their being permitted to play on the playground.
Further according to Mr. Sottile's testimony, the infant plaintiff “went on and seemed to let go and he fell. He went to break his fall the right way. When he landed he was obviously hurt.” Mr. Sottile did not see the infant plaintiff do anything wrong on the zip line. In fact, Mr. Sottile testified that the infant plaintiff “did everything right.” Moreover, when asked if the infant plaintiff landed on his elbows, Mr. Sottile testified that plaintiff did not land on his elbows; “[h]e landed on his forearms. There's a proper way to break a fall;” “[w]hen you're falling, not to post with your hands, rather post with your forearm.” There is, however, no testimony that Mr. Sottile specifically instructed the children as to the “proper way to break a fall” when he instructed the class on how to use the equipment.
In contrast, the infant plaintiff testified that no one showed him how to use the zip line apparatus. The occasion of his accident was the very first time that the infant plaintiff ever used the subject apparatus. He had only observed other children from other classes use the zip line in the past but did not receive any instruction from a teacher. The infant plaintiff also described that, on the date of the incident, they were taken to the gym by their classroom teacher. Once at the gym, they “went outside and [ ] started running” around the playground at the direction of Mr. Sottile, who instructed them to run laps. According to the infant plaintiff, they were supposed to run two laps around and then they “could play in the playground.” When specifically asked if Mr. Sottile or his classroom teacher ever showed him or instructed him how to use the zip line, the infant plaintiff replied, “[n]o one showed me.”
Furthermore, the infant plaintiff testified that, although he grabbed the handle with both hands, it was “a little bit wet,” and his hands both slipped off the handle at the same time, causing him to fall to the ground. The infant plaintiff stated that his elbow was the first part of his body that hit the ground, not his forearms.
Accordingly, the infant plaintiff's testimony raises a question of fact as to whether he was properly instructed in the use of the zip line apparatus and as to the proper way to break a fall (see Merson, supra; Moschella v. Archdiocese of New York, 48 AD2d 856 [2d Dept 1975] ). Moreover, the contradictory testimony raises a question of credibility that can only be resolved by the trier of fact.
Since defendants have failed to establish their prima facie entitlement to summary judgment as a matter of law in this regard, their motion is denied.
The foregoing constitutes the Decision and Order of this Court.
Carmen Victoria St. George, J.
Response sent, thank you
Docket No: 22954/14
Decided: March 13, 2019
Court: Supreme Court, Suffolk County, New York.
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