Benitez v. New York City Bd. of Educ.

• Decision Date: 08 June 1989
• Citation: 543 N.Y.S.2d 29,73 N.Y.2d 650,541 N.E.2d 29
• Parties: , 541 N.E.2d 29, 57 USLW 2743, 54 Ed. Law Rep. 933 Sixto R. BENITEZ, Respondent, v. NEW YORK CITY BOARD OF EDUCATION et al., Appellants, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 29

543 N.Y.S.2d 29

73 N.Y.2d 650, 541 N.E.2d 29, 57 USLW

2743, 54 Ed. Law Rep. 933

Sixto R. BENITEZ, Respondent, v. NEW YORK CITY BOARD OF EDUCATION et al., Appellants, et al Defendants.

Court of Appeals of New York.

June 8, 1989.

[541 N.E.2d 30] Peter L. Zimroth, Corp. Counsel (Fay Leoussis and [73 N.Y.2d 652] Leonard Koerner, New York City, of counsel), for appellants.

[73 N.Y.2d 653] Stephen C. Glasser, Staten Island, and Robert G. Sullivan, New York City, for respondent.

Ronald R. Shaw, Scotia, for New York State Public High School Athletic Ass'n, Inc., amicus curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

In this personal injury action seeking damages arising from a paralyzing high school football injury, the jury returned a verdict for plaintiff Benitez on four separate theories of negligence against the New York City Board of Education (Board) and its Public Schools Athletic League (PSAL). The Trial Justice granted a postverdict motion rejecting two of the four negligence theories. In a split decision, the Appellate Division affirmed the judgment for Benitez in the sum of $878,330 and subsequently granted the Board and PSAL leave to appeal.

We reverse and dismiss the complaint because plaintiff adduced insufficient evidence that defendants breached any duty of reasonable care which can be said to have proximately caused his injuries. A board of education, its subordinate employees and interscholastic athletic organizations must exercise only reasonable care to protect student athletes in sports competitions from injuries arising out of unassumed, concealed, or unreasonably increased risks. The trial court incorrectly resolved the duty/causation issue and did so under an erroneous higher duty of care instruction.

Benitez was a 19-year-old senior star athlete at George Washington High School (GW) when he suffered a broken neck in 1983 during a varsity football game against another Division A team, John F. Kennedy High School (JFK). GW had been placed in Division A prior to the 1982 season by the Football Committee of the PSAL. The PSAL determined, pursuant to established guidelines, that GW was better suited for Division A competition than the less competitive Division B league where GW had been dominant the three previous seasons. GW exhausted its administrative appeals, arguing throughout that Division A competition was "potentially dangerous to the safety and welfare of the team" and that the players might "suffer serious injuries". Before the start of the 1983 season, GW again sought to be assigned to Division B, citing among its grounds safety concerns and the injury toll suffered by the team during the 1982 season. Under PSAL administrative guidelines and because the injuries suffered by GW players were akin in number and degree with those of other Division A teams, this request for reassignment was also denied.

Following the 1983 denial, GW's coach advised the school's new principal to drop the football program but was told that such action would result in the barring of all GW athletic teams from interscholastic competition for the year. Prior to the 1983 GW-JFK game, the coach and the assistant principal in charge of physical education and health advised GW's principal that the game was a mismatch and should not be played because of the high risk of injury. The coach testified as a witness for plaintiff that, despite the principal's decision to play the season and the game, he viewed it as the coach's responsibility to pull a team off the field in the face of unsafe competition. He felt at the time it was unsafe for his team to be playing JFK; he knew his players were fatigued; he did not have the personnel to rest Benitez; and he was aware that injuries are most likely to occur when players are tired. He did not unilaterally cancel the game because he feared it might cost him his job.

Plaintiff Benitez had received numerous college football scholarship offers before his injury. He testified that he played football voluntarily and that he was fully trained by a qualified coach, particularly with respect to proper blocking techniques. His injury occurred with 1 minute and 17 seconds left in the first half of the game while correctly executing a block during a kick-off return by his team. Prior to his injury, he engaged, as was customary for him, in the great majority of plays for his team's offensive, defensive and special squads. Plaintiff conceded he was fatigued at the time of his injury but had not so informed his coach.

Benitez initiated this action against the Board, PSAL and City of New York alleging negligence in placing and retaining GW in Division A; allowing GW to play the JFK game in the face of an obvious mismatch; and allowing him to play virtually the entire first half of the game without adequate rest. Prior to submission of the case to the jury, the Trial Justice dismissed the case as against the City of New York. The court subsequently instructed the jury, over objection, that the defendants were obligated to exercise the same level of care "as a parent of ordinary prudence would exercise under the same circumstances".

The jury verdict in Benitez' favor apportioned 30% of the fault against him and 70% against the defendants. The Trial Justice granted, in part, a motion for a judgment notwithstanding the verdict and dismissed the causes relating to the placement and retention of GW in Division A, reasoning that these were discretionary determinations. Declining to direct a defendants' verdict on the remaining negligence theories, the Trial Justice stated: "[c]ertainly, the jury had a right to indicate that from the facts that were given, that they acted negligently in permitting him to play; particularly, if the coach indicated that he was fatigued. And, if he was playing him in a manner knowing that he was fatigued, certainly the jury could find that he was negligent in doing that."

In affirming, the Appellate Division majority reasoned that despite Benitez' voluntary participation and assumption of the risks inherent in football, the coach knew it was unsafe for Benitez to be playing full time, while tired, in a mismatched game and that the failure to rest him substantially increased the likelihood of injury and was its proximate cause. Additionally, the risk of injury was said to have been unreasonably enhanced by the "indirect compulsion" (141 A.D.2d 457, 459, 530 N.Y.S.2d 825) of the teacher-student relationship and the student's concern that he not jeopardize his college scholarship opportunities by removing himself from the game.

The dissenting Justice stated that the standard of care applicable to this situation was unsettled, but regardless of whether it was a "reasonable care" or a "prudent parent" standard, neither was breached in this case. Viewing fatigue and injury as risks inherent in football and assumed by plaintiff, the dissenter asserted that the assumption of risk defense was unrebutted. He rejected application of the "implied compulsion" theory as there was no evidence that the 19-year-old plaintiff was acting in other than a voluntary manner.

Leave was granted by the Appellate Division on a certified question which need not be answered, as the order appealed from finally determines the action. We reverse and dismiss the complaint.

The trial court erroneously instructed the jury that a school owes a student voluntarily competing in an interscholastic high school football game the more protective duty and standard of care of a prudent parent (compare, Pratt v. Robinson, 39 N.Y.2d 554, 384 N.Y.S.2d 749, 349 N.E.2d 849; Lawes v. Board of Educ., 16 N.Y.2d 302, 305, 266 N.Y.S.2d 364, 213 N.E.2d 667; Hoose v. Drumm, 281 N.Y. 54, 57-58, 22 N.E.2d 233). In the context of wholly voluntary participation in intramural, interscholastic and other school-sponsored extracurricular athletic endeavors, we have required the exercise of the less demanding ordinary reasonable care standard (see, Scaduto v. State of New York, 86 A.D.2d 682, 683, 446 N.Y.S.2d 529, aff'd. 56 N.Y.2d 762, 452 N.Y.S.2d 21, 437 N.E.2d 281; Govel v. Board of Educ., 267 A.D. 621, 624, 48 N.Y.S.2d 299, aff'd. 293 N.Y. 928, 60 N.E.2d 133).

To be sure, application of the personal injury principles of duty, breach and proximate cause in the context of sports injuries almost invariably includes a discussion also of assumption of risk. The common Latin aphorism cited in the cases translates as follows: one who consents to an act does not suffer a compensable injury. As Judge Cardozo put it in the "Flopper" amusement ride case, "[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball" (Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482, 166 N.E. 173; see, Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 329, 441 N.Y.S.2d 644, 424 N.E.2d 531; see also, 1 Lee and Lindahl, Modern Tort Law § 9.01, at 237-238 [rev. ed.]; Restatement [Second] of Torts § 496A, comment b). As an integral part of athletic competitions, persons are generally held by their actual and implied consents to the risks of "injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" (Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; see, 2 Speiser, Krause, Gans, American Law of Torts § 9:43, at 1328). In this context, however, important legal distinctions are drawn between compulsory physical education courses and voluntary participation in interscholastic athletic activity (Passantino v. Board of Educ., 52 A.D.2d 935, 937, 383 N.Y.S.2d 639, rev'd. on dissenting opn. 41 N.Y.2d 1022, 395 N.Y.S.2d 628, 363 N.E.2d 1373), as well as between professional and amateur status (Maddox v. City of New York, 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487...