Enocher v. Rockville Ctr. Union Free Sch. Dist.

• Decision Date: 27 July 2012
• Docket Number: Index No.: 013028/11
• Citation: Enocher v. Rockville Ctr. Union Free Sch. Dist., 2012 NY Slip Op 32059, Index No.: 013028/11 (N.Y. Sup. Ct. Jul 27, 2012)
• Parties: TIFFANY ENOCHER, an infant by her Mother and Natural Guardian, PATRICIA CANTY and PATRICIA CANTY, Individually, Plaintiffs, v. ROCKVILLE CENTER UNION FREE SCHOOL DISTRICT and SKI SHAWNEE, INC., Individually and D/B/A SHAWNEE MOUNTAIN SKI AREA and MAXIMUM TOURS, INC., Defendants. ROCKVILLE CENTER UNION FREE SCHOOL DISTRICT, Third-Party Plaintiff, v. THE MAXIMUM TOURS LLC, Third-Party Defendant.
• Court: New York Supreme Court

2012 NY Slip Op 32059

TIFFANY ENOCHER, an infant by her Mother and Natural Guardian,

PATRICIA CANTY and PATRICIA CANTY, Individually, Plaintiffs,

v.ROCKVILLE CENTER UNION FREE SCHOOL DISTRICT and SKI SHAWNEE, INC.,Individually and D/B/A SHAWNEE MOUNTAIN SKI AREA and MAXIMUM TOURS, INC., Defendants.

ROCKVILLE CENTER UNION FREE SCHOOL DISTRICT, Third-Party Plaintiff,

v.THE MAXIMUM TOURS LLC, Third-Party Defendant.

Index No.: 013028/11

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU TRIAL/IAS PART 14

Dated: July 25, 2012

Dated: July 27, 2012

SHORT FORM ORDER

Present: HON. RANDY SUE MARBER

JUSTICE

Motion Sequence...01, 03

Motion Date...05/22/12

XXX

Papers Submitted:

Notice of Motion (Mot. Seq. 01)..............x

Notice of Motion (Mot. Seq. 03)..............x

Memorandum of Law...............................x

Plaintiffs' Affirmation in Opposition.......xAffirmation in Response..........................x

Affirmation in Support.............................x

Upon the foregoing papers, the motion (Mot. Seq. 01¹ ) by the Defendant, Maximum Tours, Inc. ("Maximum Tours"), seeking an Order of this Court granting Summary Judgment, pursuant to CPLR § 3212, dismissing the complaint of the Plaintiffs, Tiffany Enocher, an infant by her mother and natural guardian, Patricia Canty, and Patricia Canty, individually, and any and all cross-claims against it; and the motion (Mot. Seq. 03) by the Defendant, Rockville Center Union Free School District ("School District"), seeking an Order of this Court granting Summary Judgment, pursuant to CPLR § 3212, dismissing the complaint of the Plaintiffs and any and all claims against it, are determined as hereinafter provided.

A negligence/personal injury action was filed by the Plaintiffs initially against the Inc. Village of Rockville Centre and the School District in April, 2010, under Index No. 007145/10, arising from an accident where the Infant Plaintiff fell from a ski lift during an elementary school skiing field trip² . The School District commenced a Third-Party action against Maximum Tours in April, 2011. Maximum Tours' instant motion arises from an underlying, but related, negligence action filed by the Plaintiff against this Defendant in thisCourt in September, 2011, under Index No. 013028/11.

The Plaintiffs allege, inter alia, that the School District and Maximum Tours failed to adequately supervise the Infant Plaintiff and protect the safety and well-being of students on the ski trip.

On January 17, 2009, the Infant Plaintiff, then a fifth grade student in the Rockville Centre Union Free School District, participated in a school sponsored ski trip at Shawnee Mountain in Pennsylvania. According to Maximum Tours, who arranged this and other ski trips for the School District, its role was limited to transporting the students to the trip and arranging for the students to access the activities offered by Shawnee Mountain. Towards the end of the trip, the Infant Plaintiff sustained injuries when she fell from the chair lift. She was riding alone and the safety bar was not lowered.

The Infant Plaintiff had prior experience skiing on at least three family trips, where she used ski lifts. She also took skiing instruction during her prior family ski trips and during the subject trip. According to the Defendants, the Plaintiff, Patricia Canty, executed the Shawnee permission form and consented for her mother to execute the Maximum Tours reservation form on her behalf.

It is disputed as to how the Infant Plaintiff fell from the chair lift. However, the crux of her allegations is that she was unable to pull down the safety bar, and consequently, she did not feel that she was secured in the chair.

Maximum Tours argues that no liability can attach to it as it owed no duty tothe Plaintiff regarding the safety and/or operation of any equipment at the ski lodge. Further, they argue the Infant Plaintiff assumed the known and obvious risks associated with the activity of skiing.

Maximum Tours submits, as supporting evidence, the pleadings under Index No. 007145/10 and IndexNo. 013028/11, and the following transcripts: the Infant Plaintiff s November, 2009 Section 50 (h) hearing and June, 2011 Examination Before Trial; the Examination Before Trial of Nicholas Fredericks, President of Shawnee Ski resort; the Examination Before Trial of Joseph Paluseo, the Infant Plaintiff's fifth grade teacher; the Examination Before Trial of Scott Bochner, President Maximum Tours; and the Examination Before Trial of the Plaintiff, Patricia Canty.

The Defendant, School District, argues that the applicable standard in this case is that the school exercise reasonable care to protect students participating in extracurricular sports from unassumed, concealed or unreasonably increased risks. The School District also argues that the Plaintiff failed to demonstrate that the School District had specific knowledge of the conditions that caused the injury. Prior school sponsored ski trips with a similar adult to student ratio occurred virtually without incident. Additionally, the School District points out that there had been no reports of any prior accidents or incidents involving chair lifts.

In support of its motion, the School District submits: copies of the pleadings under Index No. 007145/10; the foregoing transcripts as well as transcripts of non-party witnesses, Kaitlin Smalling, and Hailey Dahlberg; fliers advertising the ski trip; release formsexecuted by the Plaintiff and her designee; a list of chaperones and assigned students as provided by School District teachers; and pictures of the ski lift.

The Plaintiffs, in opposition, argue that both Defendants were negligent in its supervision of the Infant Plaintiff. As to Maximum Tours, the Plaintiffs contend that it contracted with the School District to provide the ski trip and has accordingly, assumed responsibility for supervision of the students. As such, the Plaintiffs contend that chaperones should have been stationed at the foot of the skiing hills to ensure that the students were complying with safety rules and to protect them if they failed to invoke such safety measures, which included the wearing of a helmet.

The Plaintiffs submit an affidavit from an expert in school management, Evelyn Finn, as evidence, in addition to pictures of the signs posted at the ski lifts and the actual ski lift and chair.

The standards of summary judgment are well-settled. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.(see Alvarez v. Prospect Hosp., 68 N.Y.2d320, 324 [1986]).

To hold a defendant liable in common-law negligence, a plaintiff must demonstrate: a duty owed by the defendant to the plaintiff; a breach of that duty; and that the breach constituted a proximate cause of the injury (see Ingrassia v. Lividikos, 54 A.D.3d 721 [2nd Dept. 2008]). Generally, the existence of a defendant's duty is a legal question to be determined by the court in the first instance. In making such a determination, courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was reasonably foreseeable (see Lynfatt v. Escobar, 71 A.D.3d 743 [2nd Dept. 2010]).

It is also well settled that although schools are under a duty to adequately supervise the students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision, they are not insurers of the safety of their students, for they cannot be reasonably expected to continuously supervise and control all of the students' movements and activities (Totan v. Board of Educ. of City of New York, 133 A.D.2d 366 [2nd Dept. 1987]). In order to find that a school has breached its duty to provide adequate supervision, the plaintiff must show that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused injury and that the third-party acts could reasonably have been anticipated (Hernandez v. Christopher Robin Academy, 276 A.D.2d 592 [2nd Dept. 2000]).

As to the standard of care, this Court is guided by the rationale and facts underMonti v. Herricks Union Free School Dist., 15 Misc.3d 1110(A), NY Sup Ct 2007. While the Defendant school advertised the ski trip, there is nothing in the record indicating that it was part of a required course. The Infant Plaintiff's participation in the ski trip was voluntary. The general factors that invoke the doctrine of inherent compulsion, to wit, a direction by a superior to do the act and an economic compulsion, are not present. Therefore, the applicable standard of care is whether the School District exercised ordinary and reasonable care. The standard of care applicable to organizers of sporting or recreational events is to exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed, or unreasonably increased risks (Monti v. Herricks Union Free School Dist).

In the instant matter, the School District Defendant sustained its burden of establishing that it had no actual or constructive notice of any dangerous conduct. The Defendant offered such ski trips with Maximum Tours for the past six or seven years, (see Notice of Motion, Exhibit P). According to this Defendant, the only injury reported was a minor one and not one concerning the use of ski lifts. Further, there were no reports of any...