Franck by Franck v. Minisink Valley School District

• Decision Date: 19 January 1988
• Citation: 523 N.Y.S.2d 573,136 A.D.2d 588
• Parties: , 44 Ed. Law Rep. 564 Bryan FRANCK, an Infant, BY His Father and Natural Guardian, Karlton C. FRANCK, et al., Appellants, v. MINISINK VALLEY SCHOOL DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 573

523 N.Y.S.2d 573

136 A.D.2d 588, 44 Ed. Law Rep. 564

Bryan FRANCK, an Infant, BY His Father and Natural Guardian Karlton C. FRANCK, et al., Appellants, v. MINISINK VALLEY SCHOOL DISTRICT, Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 19, 1988.

Finkelstein, Kaplan, Levine, Gittlesohn and Tetenbaum, Newburgh, (Duncan W. Clark, of counsel), for appellants.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Thomas H. Blair, III, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Orange County (Hickman, J.), entered July 31, 1986, as, upon a jury verdict, was in favor of the defendant.

ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

On June 21, 1982, Bryan Franck, then 11 years old, was enrolled in a fifth grade class. His teacher, Gregory DiNunzio, took the class of approximately 20 children outside to a playing field for what he referred to as a recess. Most of the class joined DiNunzio in a softball game, but DiNunzio gave four students permission to do cartwheels and handsprings in a grassy area behind the catcher. The students had learned cartwheels and handsprings in their gym class. DiNunzio permitted Bryan to join the cartwheel group. DiNunzio pitched in the softball game and looked over at the cartwheel group after every few pitches. Bryan watched the cartwheeling but did not do cartwheels himself. Once or twice the cartwheelers asked him to move, but he did not. As he talked to two of the group, a third student, doing a cartwheel behind Bryan, kicked him in the head. That child was wearing wooden clogs at the time and Bryan allegedly suffered a head and brain injury as a result thereof.

At a bifurcated trial on the issue of liability, the plaintiffs called the physical education teacher who had taught the students cartwheels in gym class earlier in the school year. The plaintiffs sought to have her testify as an expert that cartwheeling was a dangerous activity which required a certain level of supervision. The trial court excluded her testimony on the basis of relevancy. The court distinguished formal instruction in cartwheeling from supervision of cartwheeling as an outdoor activity during recess. However, the court agreed that a properly qualified expert would be permitted to testify as to whether it was an accepted practice to allow fifth graders to do cartwheels on the grass during recess.

Thereafter, the plaintiffs called another physical education teacher who had taught physical education, coached, and supervised playground activities for 27 years. He held a doctorate in administration and supervision of physical education and had published more than 50 articles on safety including safety in gymnastics. The trial court sustained the defendant's objection to inquiry into accepted practices in the teaching profession in supervising children doing cartwheels, reasoning that the expert should not be allowed to state his opinion on the "ultimate issue" in the case. The court excluded expert...