Bloomfield v. Jericho Union Free Sch. Dist.

• Decision Date: 18 January 2011
• Citation: 80 A.D.3d 637,915 N.Y.S.2d 294
• Parties: Debra BLOOMFIELD, etc., et al., appellants-respondents, v. JERICHO UNION FREE SCHOOL DISTRICT, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 294 80 A.D.3d 637 Debra BLOOMFIELD, etc., et al., appellants-respondents, v. JERICHO UNION FREE SCHOOL DISTRICT, respondent-appellant. Supreme Court, Appellate Division, Second Department, New York. Jan. 18, 2011.

Peters Berger Koshel & Goldberg, P.C., Brooklyn, N.Y. (Marc A. Novick of counsel), for appellants-respondents.

Mulholland, Minion & Roe, Williston Park, N.Y. (Paul McBride and Christine M. Gibbons of counsel), for respondent-appellant.

JOSEPH COVELLO, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated August 10, 2009, as granted that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as asserted a cause of action to recover damages based upon negligent supervision, and the defendant cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its motion which was for summaryjudgment dismissing so much of the complaint as asserted a cause of action to recover damages based upon premises liability.

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as asserted a cause of action to recover damages based upon negligent supervision is denied; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The infant plaintiff allegedly sustained personal injuries as she attempted to step down from one of the mats used in the sport of high jump during her gym class. The gym class was being covered by a substitute teacher who took the class outside to a football field surrounded by a track. The substitute teacher gave the students the option of walking around the track or playing touch football. Most of the students opted to play touch football at one end of the football field. However, the infant plaintiff and three of her friends opted to walk around the track. After walking one lap around the track, the infant plaintiff and her friends approached the substitute teacher and asked if they could go on mats at the other end of the football field. The substitute teacher said yes, but did not give the infant plaintiff or her friends any warnings or instructions about the mats.

The infant plaintiff ascended one of the mats from the side facing the football field. She walked towards the opposite side of the mat, and as she neared the edge of the mat, her foot became caught in a hole or tear in the mat. As the infant plaintiff attempted to untangle her foot, she fell to the ground. The substitute teacher was "half the football field" away from the infant plaintiff when the accident occurred.

The Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as asserted a cause of action to recover damages based upon premises liability ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642). A defendant who moves for summary judgmentin a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it ( see Aguirre v. Paul, 54 A.D.3d 302, 862 N.Y.S.2d 580; Lezama v. 34-15 Parsons Blvd, LLC, 16 A.D.3d 560, 792 N.Y.S.2d 123). Although a property owner has a duty to maintain his or her property in a reasonably safe condition ( see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868), it has no duty to protect or warn againstan open and obvious...