Capotosto v. Roman Catholic Diocese of Rockville Centre

• Decision Date: 01 December 2003
• Docket Number: 2002-10965.
• Citation: 767 N.Y.S.2d 857,2 A.D.3d 384,2003 NY Slip Op 19198
• Parties: TINA CAPOTOSTO et al., Respondents, v. ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE et al., Appellants.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 384

767 N.Y.S.2d 857

2003 NY Slip Op 19198

TINA CAPOTOSTO et al., Respondents, v. ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE et al., Appellants.

2002-10965.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 1, 2003.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Burke, J.), dated November 1, 2002, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

On April 22, 1997, the infant plaintiff, then eight years old and in the third grade, was injured while playing two-hand touch football with three other boys on the playground of his school, the defendant Saint Patrick's School (hereinafter the school). The injury occurred during supervised lunchtime recess at the school, when the infant plaintiff, in an attempt to catch a low-thrown pass, was struck in the head by the knee of a secondgrade schoolmate defending the play, causing the infant plaintiff's head to strike the blacktop surface of the playground. The plaintiffs commenced this action, contending that the defendants inadequately supervised the children on the playground, and negligently provided the infant plaintiff with an unsafe surface on which to play. The defendants' motion for summary judgment dismissing the complaint was denied on the ground that there were triable issues of fact as to whether the defendants adequately supervised the infant plaintiff. We reverse.

"Schools are under a duty to adequately supervise students in their charge, and they will be held liable for foreseeable injuries proximately related to absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994]; see Kandkhorov v Pinkhasov, 302 AD2d 432, 433 [2003]). Assuming that there is a triable issue of fact with respect to the adequacy of supervision, the defendants cannot be found liable absent a showing that the alleged negligent supervision constituted a proximate cause of the injury sustained (see Lopez v Freeport Union Free School Dist., 288 AD2d 355, 356 [2001]; see also Berdecia v City of New York, 289 AD2d 354 [2001]; Navarra v Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 AD2d 211 [2001]).

The accident in this case was caused by a "spontaneous and unforeseeable act committed by a fellow ... student when the two collided" (Sangineto v Mamaroneck Union Free School Dist., 282 AD2d 596 [2001]; see also Wuest v Board of Educ., 298 AD2d 578 [2002]; Shabot v East Ramapo School Dist., 269 AD2d 587 [2000]; Buckvar v Syosset Cent. School Dist., 148 AD2d 409 [1989]). Under these circumstances, "no amount of supervision, however intense, would have succeeded in preventing the accident" (Ancewicz v Western Suffolk BOCES, 282 AD2d 632, 634 [2001]; see also Janukajtis v Fallon, 284 AD2d 428, 430 [2001]; Convey v City of Rye School Dist., 271 AD2d 154, 160 [2000]). Therefore, the plaintiffs failed to meet their burden of proving that inadequate supervision was a proximate cause of the injury (see Lopez v Freeport Union Free School Dist., supra; Convey v City of Rye School Dist., supra).

Furthermore, the defendants established their entitlement to judgment as a matter of law by demonstrating that the blacktop playground surface was maintained in a reasonably safe condition (see Lopez v Freeport Union Free School Dist., supra). Contrary to the plaintiffs' contention, the use of asphalt or blacktop as a playground surface for touch football is not inherently dangerous (see Stewart v New York City Hous. Auth., 33 AD2d 901 [1970]; McGill v 39 Casino St. Corp., 16 AD2d 832, 833 [1962]; see also Washington v City of Yonkers, 293 AD2d 741 [2002]). The plaintiffs may not rely on the...