Armlin v. Board of Ed. of Middleburgh Central School Dist.

• Decision Date: 27 April 1971
• Citation: 36 A.D.2d 877,320 N.Y.S.2d 402
• Parties: Kathy Lynn ARMLIN, an Infant, by Floyd Armlin, Her Parent, et al., Respondents, v. BOARD OF EDUCATION OF MIDDLEBURGH CENTRAL SCHOOL DISTRICT et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 402

320 N.Y.S.2d 402

36 A.D.2d 877

Kathy Lynn ARMLIN, an Infant, by Floyd Armlin, Her Parent et al., Respondents, v. BOARD OF EDUCATION OF MIDDLEBURGH CENTRAL SCHOOL DISTRICT et al., Appellants.

Supreme Court, Appellate Division, Third Department.

April 27, 1971.

Robert H. Ecker, Cobleskill, for respondents.

Vibbard, Donaghy & Wright, Schoharie (Walter Bellcourt, Cobleskill, of counsel), for appellants.

Before HERLIHY, P.J., and REYNOLDS, GREENBLOTT, COOKE and SIMONS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, entered April 23, 1970 in Schoharie County, upon a verdict rendered at a Trial Term, in favor of plaintiffs and against defendants.

The infant plaintiff, a girl 11 years of age and a fifth grade student, was injured on April 3, 1968 while performing on rings during a school gymnastics class under the supervision of defendant Mahoney, a certified teacher in physical education. On trial, the facts were sharply in dispute, but there was proof: that the accident took place when the infant stood up in the rings and, in jumping out, fell backwards landing on her back; that she had dismounted similarly, by standing in the rings and jumping off backwards, on other occasions while in the fourth and fifth grades and had seen other students do the same, without objection from the teacher; that there were six different pieces of apparatus on the floor and there were 35 girls in the class divided into groups of about five each; that when the infant was on the rings there were two 'spotters' of her class assigned to break her fall should a mishap occur while performing; that the girls were told by Miss Mahoney that they could do anything they wanted on the rings except swing and to get out of the rings by going backwards so they would come down on their feet; that the rings were above their reach and beneath them was a mat; that the teacher never demonstrated any stunts on any pieces of apparatus and that the 'spotters' were not instructed how to perform; and that Miss Mahoney didn't see the infant plaintiff fall, as she had turned to go to the trampoline at the time. While denying that she had ever seen her students stand up in the rings and jump out backwards and that she taught them to jump out, Miss Mahoney admitted that that would be dangerous and that 'they could kill themselves'. There was proof that the State Physical Education Syllabus, in effect and used by the school, under the heading 'PROGRAM OF ACTIVITIES', under the subdivision 'Hanging Apparatus' and in that part dealing with the 'Fifth Grade' and 'Leg Movements', in particular, it was stated: 'The...