SWAN v. William Floyd School District, et al., appellants.

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Supreme Court, Appellate Division, Second Department, New York.

Christopher SWAN, etc., et al., respondents, v. TOWN OF BROOKHAVEN, et al., defendants, William Floyd School District, et al., appellants.

Decided: September 26, 2006

STEPHEN G. CRANE, J.P., GLORIA GOLDSTEIN, REINALDO E. RIVERA, and MARK C. DILLON, JJ. Tromello, McDonnell & Kehoe, Melville, N.Y. (Kathleen M. Watson of counsel), for appellants.

In an action to recover damages for personal injuries, etc., the defendants William Floyd School District and Moriches Elementary School appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Werner, J.), dated January 3, 2005, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment dismissing the complaint insofar as asserted against the appellants is granted.

Eleven-year-old Christopher Swan was injured when he fell from a school playground slide during recess.   The record indicates that, as Christopher attempted to get off the side of the slide, about midway down from the top, his foot got caught under another student and he fell to the ground.   The plaintiffs alleged that the injuries sustained by Christopher were the result of inadequate ground cover on the playground surface beneath the slide and negligent supervision by school personnel.

 The appellants established their prima facie entitlement to judgment as a matter of law by presenting evidence that they maintained the playground in a reasonably safe condition (see Capotosto v. Roman Catholic Diocese of Rockville Ctr., 2 A.D.3d 384, 386, 767 N.Y.S.2d 857;  Banks v. Freeport Union Free School Dist., 302 A.D.2d 341, 341-342, 753 N.Y.S.2d 890;  Lopez v. Freeport Union Free School Dist., 288 A.D.2d 355, 356, 734 N.Y.S.2d 97;  Cronin v. Middle Country Cent. School Dist., 267 A.D.2d 269, 270, 700 N.Y.S.2d 60).   The nonmandatory United States Consumer Product Safety Commission guidelines submitted by the plaintiffs in opposition were insufficient to raise a triable issue of fact as to whether inadequate ground cover on the day of the accident proximately caused Christopher's injuries (see Capotosto v. Roman Catholic Diocese of Rockville Ctr., supra;  Washington v. City of Yonkers, 293 A.D.2d 741, 742, 742 N.Y.S.2d 316;  Merson v. Syosset Cent. School Dist., 286 A.D.2d 668, 730 N.Y.S.2d 132;  cf. Gonzalez v. Board of Educ. of City of Yonkers, 298 A.D.2d 358, 359, 751 N.Y.S.2d 256;  Marrione v. Ficano Enters., 277 A.D.2d 291, 292, 715 N.Y.S.2d 747).

 The defendants also established their prima facie entitlement to judgment as a matter of law with respect to the plaintiffs' claim that negligent supervision by school personnel was the proximate cause of the accident, and the plaintiffs failed to raise a triable issue of fact in opposition.  “Schools are under a duty to adequately supervise students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  see Ungaro v. Patchogue-Medford, N.Y. School Dist., 19 A.D.3d 480, 481, 797 N.Y.S.2d 114).   While schools are not insurers of safety, they are obligated to exercise such care of their students “as a parent of ordinary prudence would observe in comparable circumstances” (Mirand v. City of New York, supra at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  see David v. County of Suffolk, 1 N.Y.3d 525, 526, 775 N.Y.S.2d 229, 807 N.E.2d 278;  Macalino v. Elmont Union Free School Dist., 18 A.D.3d 625, 795 N.Y.S.2d 656;  Jennings v. Oceanside Union Free School Dist., 279 A.D.2d 507, 508, 719 N.Y.S.2d 271).   However, “[w]here an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury” (Convey v. City of Rye School Dist., 271 A.D.2d 154, 160, 710 N.Y.S.2d 641;  see Siegell v. Herricks Union Free School Dist., 7 A.D.3d 607, 609, 777 N.Y.S.2d 148;  Lopez v. Freeport Union Free School Dist., supra;  O'Neal v. Archdioceses of N.Y., 286 A.D.2d 757, 730 N.Y.S.2d 524;  cf. Oliverio v. Lawrence Pub. Schools, 23 A.D.3d 633, 635, 805 N.Y.S.2d 638).   Here, Christopher's act of going over the side of the slide after getting his foot stuck was a sudden and unforeseen event which no amount of supervision could have prevented.   Therefore, even assuming the appellants breached their duty to supervise, this breach was not the proximate cause of the accident (see Lopez v. Freeport Union Free School Dist., supra ).

 The court's additional basis for denial of the motion as premature was erroneous since the record evinces “only hope and speculation as to what additional discovery would uncover” (Lelekakis v. Kamamis, 4 A.D.3d 507, 508, 771 N.Y.S.2d 723).

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