Baker v. Briarcliff School Dist.

• Decision Date: 20 June 1994
• Citation: Baker v. Briarcliff School Dist., 613 N.Y.S.2d 660, 205 A.D.2d 652 (N.Y. App. Div. 1994)
• Parties: , 92 Ed. Law Rep. 626 Matthew BAKER, etc., et al., Respondents, v. BRIARCLIFF SCHOOL DISTRICT, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 660

613 N.Y.S.2d 660

205 A.D.2d 652, 92 Ed. Law Rep. 626

Matthew BAKER, etc., et al., Respondents, v. BRIARCLIFF SCHOOL DISTRICT, et al., Appellants.

Supreme Court, Appellate Division Second Department.

June 20, 1994.

Henderson & Brennan, White Plains (Francis J. Henderson, of counsel), for appellants.

Abraham J. Katz, Flushing, for respondents.

Before SULLIVAN, J.P., and LAWRENCE, PIZZUTO, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated September 28, 1992, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Jean Baker, then a 16-year-old student at Briarcliff Manor High School, sustained injuries on September 29, 1989, while participating in a varsity field hockey practice. Ms. Baker's injuries occurred approximately one-half hour into the practice when she was struck in the mouth by a field hockey stick swung by a fellow student. All parties acknowledge that Ms. Baker was not wearing a mouth protector at the time of the incident.

Jean Baker's father commenced this action on his daughter's behalf against the Briarcliff School District and the Board of Education of the Briarcliff School District, alleging that the defendants were negligent in failing to properly supervise the practice, in allowing the team to practice without proper safety equipment, and in failing to advise the students of the attendant risks and dangers in not wearing proper safety equipment, particularly mouth protectors.

The defendants moved for summary judgment, arguing that its affirmative defense based on the doctrine of assumption of the risk had been established as a matter of law. In support of its motion, the defendants relied primarily on the deposition testimony of Jean Baker, wherein she acknowledged that she was not wearing her mouthpiece on the day of the incident, although she had it with her that day and was aware of the requirement that it be worn. The defendants argued that Ms. Baker's failure to wear her mouthpiece ipso facto constituted an assumption of risk barring recovery for her personal injuries and warranting summary judgment. The Supreme Court denied the motion, finding that triable issues of fact existed regarding, inter alia, the school's responsibility to exercise reasonable care in properly supervising the students as well as instructing them as to the significance of safety equipment. We agree.

In reviewing a summary judgment motion, we must accept as true the evidence presented by the nonmoving party, and the motion must be denied if there is even arguably any doubt as to the existence of a triable issue (see, Hourigan v. McGarry, 106 A.D.2d 845, 484 N.Y.S.2d 243). Here, Ms. Baker testified at her deposition that her coach never gave her any safety instructions regarding her mouthpiece, and never advised her of the risks involved in not wearing a mouthpiece. Ms. Baker further testified that on the day she was injured, "most" of the members of the team were practicing without their mouthpieces, and that she did not recall the coach ever telling either her or any of the other team members to wear them. The coach testified at her deposition that she could tell whether a player was wearing a mouthpiece simply by looking at her face, and she admitted that she was able to see Jean Baker's face during the 30 minutes of practice which preceded her injury, but that she never advised her to put in her mouthpiece. The coach testified that since the start of the season her only "lecture" to the students on the importance of safety equipment consisted of telling them "to put their mouth guards and their shin guards on to protect themselves".

The plaintiffs submitted a copy of the 1988-1989 National Federation Edition of Field Hockey Rules, which required that prior to a game, officials were to line up the players in front of their team bench, and check all safety equipment, including mouth protectors. The rules provided that safety equipment should be worn during pre-game warmups as well. Ms. Baker's coach admitted during her deposition that no such check was conducted by her on the day Jean Baker was injured. The plaintiffs submitted an affidavit by David Fried, an expert in scholastic sports, who stated that it is the obligation of the coaches to be sure that the players are wearing the required protective equipment, and that a coach should not rely upon the students...