Gray v. South Colonie Central School District

• Decision Date: 30 July 2009
• Docket Number: 506447.
• Citation: 64 A.D.3d 1125,2009 NY Slip Op 06069,883 N.Y.S.2d 647
• Parties: DEAN GRAY et al., Individually and as Parents and Guardians of DAVID M. GRAY, an Infant, Appellants v. SOUTH COLONIE CENTRAL SCHOOL DISTRICT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

64 A.D.3d 1125

883 N.Y.S.2d 647

2009 NY Slip Op 06069

DEAN GRAY et al., Individually and as Parents and Guardians of DAVID M. GRAY, an Infant, Appellants v.SOUTH COLONIE CENTRAL SCHOOL DISTRICT et al., Respondents.

506447.

Appellate Division of the Supreme Court of New York, Third Department.

Decided July 30, 2009.

Appeal from an order and judgment of the Supreme

Court (McNamara, J.), entered November 3, 2008 in Albany County, which granted defendants' motion for summary judgment dismissing the complaint.

Garry, J.

In November 2005, plaintiffs' son (hereinafter the child), then six years old, broke his elbow when he fell from a climbing structure commonly known as monkey bars on the playground of an elementary school in the Town of Colonie, Albany County.The child later testified that he fell as he tried to swing from the first to the third rung of the structure's horizontal ladder.Plaintiffs commenced this action against the Town, defendantSouth Colonie Central School District and defendantBoard of Education of South Colonie Central School District, alleging that defendants negligently failed to maintain the ground beneath the monkey bars in a reasonably safe condition, negligently failed to supervise the child, and permitted a private and public nuisance to exist on their premises.¹Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted the motion.Plaintiffs now appeal.

The child's father testified that he measured the monkey bars and the depth of the cushioning ground cover underneath them shortly after the accident.He found that the monkey bars were about 6½ feet high, and he measured a six-inch-deep layer of loose wood chips in the area where the child fell, lying on top of a layer of packed-down chips that he did not measure.Plaintiffs assert that this cushioning material was insufficient and that defendants thereby breached their duty as governmental entities "to maintain [their] ... playground facilities in a reasonably safe condition"(Solomon v City of New York,66 NY2d 1026, 1027[1985][internal quotation marks and citation omitted]).

In seeking summary judgment, defendants bore the initial burden to "make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case"(Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853[1985]).To that end, they submitted deposition testimony and other documentary evidence demonstrating that the playground was regularly inspected by various District employees and insurance representatives, that additional wood chips were added under the monkey bars in August 2005, and that, in the course of a comprehensive inspection performed in October 2005, a District employee determined that 12 inches of wood chips were present under the monkey bars.The employee alleged by affidavit that the District followed playground safety guidelines promulgated by the Consumer Product Safety Commission(hereinafter CPSC) and that both the monkey bars' 78-inch height and the depth of the cushioning material underneath them complied with those guidelines.A portion of the CPSC playground safety handbook containing a table of recommended depths of various types of cushioning material was attached.This table indicated that when uncompressed wood chips are used, the material should be six inches deep to cushion a structure measuring seven feet tall.

We agree with Supreme Court that this evidence was sufficient to establish defendants' prima facie entitlement to judgment as a matter of law on the ground that the ground cover under the monkey bars was maintained in a reasonably safe condition (seePadden v County of Suffolk,52 AD3d 663, 664[2008];Banks v Freeport Union Free School Dist.,302 AD2d 341, 341[2003]).The burden therefore shifted to plaintiffs to submit admissible evidence establishing the existence of triable issues of fact (seeWinegrad v New York Univ. Med. Ctr.,64 NY2d at 853;Zuckerman v City of New York,49 NY2d 557, 560[1980]).

Plaintiffs submitted the affidavits of a school safety consultant and an emergency room physician.The consultant's affidavit merely referenced plaintiffs' expert disclosure, in which it was claimed that defendants should have placed at least nine inches of mulch cover or cushioning material under the monkey bars to comply with CPSC guidelines and that the alleged failure to do so, combined with negligent supervision, proximately caused the child's injury.The physician opined that the child's injuries would probably have been less severe if the monkey bars had been lower or the cushioning surface deeper.Neither expert inspected the playground or the ground cover, instead basing their views solely on documentary evidence, including the deposition testimony, photographs, the measurements taken by the child's father, and medical records (seeBanks v Freeport Union Free School Dist.,302 AD2d at 342;see alsoDillman v Albany R.C. Diocese,237 AD2d 767, 768-769[1997]).Their opinions as to the material's composition and depth were based solely upon the measurements taken by the child's father.These measurements did not reveal the depth of the layer of the compressed wood chips that the father described under the six-inch-deep loose chips.²"`Where [an] expert's ultimate assertions are speculative or unsupported by any evidentiary foundation ... the opinion should be given no probative force and is insufficient to withstand summary judgment'"(Ann JJ. v Schenectady Assn. for Retarded Citizens,59 AD3d 772, 773[2009], quotingDiaz v New York Downtown Hosp.,99 NY2d 542, 544[2002]).Supreme Court correctly determined that the affidavits were "insufficient to raise a triable issue of fact as to...