Luce v. Board of Ed. of Village of Johnson City

• Court: New York Supreme Court Appellate Division
• Writing for the Court: COON; HALPERN
• Citation: 157 N.Y.S.2d 123,2 A.D.2d 502
• Parties: Rita LUCE, by her guardian ad litem, Orin Luce, and Orin Luce, individually, Plaintiffs-Respondents, v. BOARD OF EDUCATION OF VILLAGE OF JOHNSON CITY, New York, Katharine Denton, and Leola Holcomb, Defendants-Appellants.
• Decision Date: 14 November 1956

Page 123

157 N.Y.S.2d 123 2 A.D.2d 502 Rita LUCE, by her guardian ad litem, Orin Luce, and Orin
Luce, individually, Plaintiffs-Respondents,
v.
BOARD OF EDUCATION OF VILLAGE OF JOHNSON CITY, New York,
Katharine Denton, and Leola Holcomb, Defendants-Appellants. Supreme Court, Appellate Division, Third Department. Nov. 14, 1956.

Page 125

Kramer, Wales & Robinson, Binghamton [2 A.D.2d 503] (Donald W. Kramer, Bing-hamton, of counsel), for defendants-appellants.

William K. English, Johnson City, for plaintiffs-respondents.

[2 A.D.2d 507] Before FOSTER, P. J., and BERGAN, COON, HALPERN, and ZELLER, JJ.

COON, Justice.

The judgment, based upon jury verdicts, awards damages to each plaintiff against all three defendants resulting from personal injuries sustained by the infant plaintiff on November 16, 1953, while participating in a physical education class in an elementary school. The accident occurred while the infant plaintiff, then eleven years of age, was participating in a game called 'jump the stick relay' in a physical education class conducted and supervised by the defendant, Katharine Denton, a physical education teacher. The defendant Leola Holcomb was the supervising principal of the elementary school in which the accident occurred. The school was one of the schools under the jurisdiction of the defendant Board of Education.

[2 A.D.2d 504] The infant plaintiff had suffered two previous fractures of her right forearm in accidents unrelated to her school activities, one in 1949 and one in 1950. The 1950 fracture necessitated an open reduction which left a noticeable scar on her forearm, and when she returned to school in the fall of 1950 her arm was in a cast and she did not participate in gymnasium class activities for some time, although she attended the classes. She was excused from participating because of a doctor's certificate that her physical condition did not permit such activity. During the school term in which the accident here involved occurred there was no such doctor's certificate presented, and it appears that the attending physician had given his permission that the infant plaintiff participate in physical education classes in general. There is evidence, however, that the child's mother had advised the principal and the defendant teacher that because of her previous injuries, the child should not participate in 'rough games', and the mother testified that she advised both of these defendants that the child should not participate in any activity or game in which she might be caused to fall.

Page 126

In playing the game of 'jump the stick relay' the class of girls was divided into four lines. The first two children in line were called upon to take hold of either end of a round wooden stick of small diameter, holding it from four to six inches above the floor and from twelve to eighteen inches in advance of the first child then remaining in line. At a given signal the children holding the stick advanced it toward the line and each child in line was supposed to jump the stick. The game was competitive, and the line which successfully completed jumping the stick first won. The infant plaintiff was third in the line which was called upon the demonstrate the game to the others. The two children at the head of the line were selected by the teacher to hold and advance the stick toward the remainder of the line, which was now headed by the infant plaintiff. As they did so the infant plaintiff fell and again fractured her right...