McAuliffe v. Town of New Windsor

• Decision Date: 31 December 1991
• Citation: 178 A.D.2d 905,577 N.Y.S.2d 942
• Parties: John F. McAULIFFE, as Father and Natural Guardian of John J. McAuliffe, an Infant, Appellant, v. TOWN OF NEW WINDSOR, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 942

577 N.Y.S.2d 942

178 A.D.2d 905

John F. McAULIFFE, as Father and Natural Guardian of John J McAuliffe, an Infant, Appellant, v. TOWN OF NEW WINDSOR, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 31, 1991.

Greenblatt & Winslow, P.C. (Richard Greenblatt, of counsel), Newburgh, for appellant.

Maynard, O'Connor & Smith (Edwin J. Tobin, Jr., of counsel), Albany, for respondent.

Before CASEY, J.P., and MIKOLL, YESAWICH, CREW and HARVEY, JJ.

CREW, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Ingrassia, J.), entered August 20, 1990 in Orange County, which granted defendant's motion for, inter alia, summary judgment dismissing the complaint.

On July 3, 1984, John J. McAuliffe, then age 16, and four of his friends went to Crestview Lake in the Town of New Windsor, Orange County, to swim and for recreation. At some point during that day, the weather changed and it began to rain and thunder. The lifeguard on duty announced that everyone was to get out of the water. The lifeguard then alerted the beach director, Robert La Course, of the weather conditions and La Course made an announcement over the public address system that all swimmers were to leave the water and the beach area and take cover. Although McAuliffe heard the direction to get out of the water, he did not hear the direction to take cover. After leaving the beach area, McAuliffe and his friends walked to a grassy hill about 50 feet away from the nearest shelter. There they decided to wait and see if the rain would stop, even though they were aware of the possibility of lightning. They began to kick a volleyball and started to play in close proximity to a metal waste can. When McAuliffe went to retrieve the volleyball near the waste can, lightning struck the can and ricocheted into him. He was knocked unconscious and fell to the ground. On October 2, 1985, plaintiff commenced this personal injury action on behalf of McAuliffe against defendant alleging negligent supervision and failure to exercise reasonable care to protect his son from foreseeable hazards. Defendant interposed an answer and asserted numerous affirmative defenses. After a number of examinations before trial, defendant moved for summary judgment dismissing the complaint. The motion was granted and this appeal ensued.

The issue before this court is whether defendant's duty to furnish an adequate degree of general supervision included a direction to McAuliffe not to play on the grassy hill. Put another way, the issue is whether defendant was required to make certain that McAuliffe took proper shelter from the potential hazard of lightning. Generally, a municipality is obliged to furnish an adequate degree of general, but not strict or immediate, supervision to patrons who have been invited to avail themselves of park facilities or recreation areas (see, Caldwell v. Village of Is. Park, 304 N.Y. 268, 273, 107 N.E.2d 441). However, a municipality is not required to maintain constant surveillance of the movements of all patrons of its facilities in order to prevent patrons from partaking in risky and dangerous activities that are self-evident (cf., Curcio v. City of New...