Germond v. Board of Ed. of Central School Dist. No. 1

• Decision Date: 18 March 1960
• Citation: 10 A.D.2d 139,197 N.Y.S.2d 548
• Parties: Beverly GERMOND by William Germond, her Guardian ad Litem, Plaintiff-Respondent, v. BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, and Betty Jane Van Etten, Defendants-Appellants, and Reginald Bennett, Superintendent of Schools, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 548

197 N.Y.S.2d 548

10 A.D.2d 139

Beverly GERMOND by William Germond, her Guardian ad Litem Plaintiff-Respondent, v. BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1, and Betty Jane Van Etten, Defendants-Appellants, and Reginald Bennett, Superintendent of Schools, Defendant.

Supreme Court, Appellate Division, Third Department.

March 18, 1960.

Cribari, Scapolito & Solinger, Mount Vernon (George W. Scapolito, Mount Vernon, of counsel), for defendants-appellants.

Flanagan & Ortale, Kingston (Richard W. Griggs, Kingston, of counsel), for plaintiff-respondent.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

BERGAN, Presiding Justice.

Plaintiff was a second grade pupil at the central school maintained by the defendant Board of Education, when, on May 17, 1954, she was injured on the school playground. She was struck in the face by a baseball bat swung by an older girl pupil playing softball. Plaintiff was then seven years old.

The rules established by the Board of Education for the control of the playground required that the playing of softball be under supervision; and a further rule made under the Board's authorization required that a written request for the use of a baseball bat or similar equipment be obtained before issuance and that a teacher be present when such equipment was used.

A pass was given by a study hall teacher to four girls of the seventh grade to 'play soft ball out in the field'. The girls found the equipment for the game near the exit door, apparently by pre-arrangement, and no written request for the use of it was given to the athletic department in accordance with the rules.

Plaintiff and her second grade classmates were under the supervision of defendant teacher Jorgensen (formerly Van Etten). The second grade class was playing under the supervision of their teacher in the field and the teacher testified she did not notice that older girls were playing softball. She noticed one of the older girls talking to her sister who was one of the second grade pupils. Plaintiff was injured when she ran into the line in which one of the older girls swung the bat.

The jury found a verdict against defendant Board of Education of $5,000, which the court set aside as inadequate and directed a new trial unless defendant consented to increase the same to $10,000. The jury found a verdict of no cause of action for the teacher Jorgensen. The court set aside this verdict as against the weight of evidence and ordered a new trial. Both defendants appeal.

The statutory duty of the Board of Education is to 'establish' rules and regulations for the school deemed necessary 'to secure' the 'best' educational results (Education Law, § 1709(2). It has been held that, having made adequate rules, the Board is not liable for the individual negligence of a competent teacher. Graff v. Board of Education, 258 App.Div. 813, 15 N.Y.S.2d 941.

There seems, however, in the cases as they have developed to be some difference between the assumption of responsibility by a board for the individual negligence of a teacher and the failure of the Board reasonably to enforce its own regulations designed for safety. The mandate of the Legislature to 'establish' rules means more than to write them in a book. Reasonable efforts must be made by the Board to enforce salutary and adequate rules; and a liability may be incurred for a failure to enforce, as well as to make, a rule.

This responsibility would be quite similar to that which arises under the Board's duty to repair and maintain structures considered in Hoose v. Drumm, 281 N.Y. 54, 58, 22 N.E.2d 233, 234, and Miller v. Board of Education, 291 N.Y. 25, 50 N.E.2d 529. Thus in Govel v. Board of Education, 267 App.Div. 621 at page 625, 48 N.Y.S.2d 299, at page 302, it was noted that the Board failed to enact 'and enforce' rules which might have prevented plaintiff's injury.

In playground or school yard injury cases, this failure to make or enforce rules is sometimes closely linked to the direct duty of the Board to supervise such areas,...