Nestor v. City of New York
| Decision Date | 15 February 1961 |
| Citation | 211 N.Y.S.2d 975,28 Misc.2d 70 |
| Parties | Michael NESTOR, an infant under the age of fourteen years, by his guardian ad litem, Jack Nestor, and Jack Nestor v. CITY OF NEW YORK, the Board of Education of the City of New York and The Youthtown Day Care Center. |
| Court | New York Supreme Court |
Herman B. Glaser, New York City, for plaintiffs.
Charles H. Tenney, New York City, Corp. Counsel, for defendants.
In an action against the Board of Education to recover damages for injuries sustained by the infant plaintiff when he was struck by a bat wielded by another infant, the jury returned a verdict in favor of plaintiffs. The defendant moved to set aside the verdict upon the grounds specified in Section 549 of the Civil Practice Act. Decision was reserved on this motion, on the motions to dismiss the complaint made at the end of plaintiffs' case and of the entire case, and on the motion for a directed verdict.
The verdict in plaintiffs' favor constrains the Court to view the evidence adduced by plaintiff in its most favorable aspect. It would appear therefrom that the infant plaintiff was one of a group of some 45 boys playing 'catch-a-fly' in a public playground under the supervision of a teacher employed by the Board of Education.
According to the plaintiff, the teacher was distributing milk on a step in a doorway at a point approximately 30 feet from the third base of the field where play was in progress. Michael, the infant plaintiff, hit a high fly a short way from home plate. Instead of remaining there, he dropped his bat and ran out to catch the ball. Meanwhile, another boy, Anthony Occhuzzio, also an infant, who had been standing half way between home plate and first or third base, with a bat in his hand, ran towards the descending ball which Michael was then trying to catch, swung at the ball with his bat and struck Michael, inflicting the injuries for which this suit has been brought.
Two of the plaintiff's contentions may be considered together; firstly, that the teacher was not providing supervision because he was engaged in the distribution of milk and, secondly, that if the teacher had been supervising he could have done something such as blowing his whistle to prevent the occurrence and ensuing injury.
The teacher testified that he employed a monitor system for the distribution of the milk, but even if it be assumed that he was, in fact, distributing milk, that would not avail the plaintiff, inasmuch as general supervision by a teacher is all that is required .
There is no requirement that the teacher have under constant and unremitting scrutiny the precise spots wherein every phase of play activity is being pursued; nor is there compulsion that the general supervision be continuous and direct. See Ohman v. Board of Education of City of New York, 300 N.Y. 306, 90 N.E.2d 474, where a teacher left the class to attend to a matter in the office of the principal. Talevi v. Metropolitan Life Insurance, 7 A.D.2d 900, 181 N.Y.S.2d 947. See also Curcio v. City of New York, 275 N.Y. 20, 9 N.E.2d 760; Peterson v. City of New York, 267 N.Y. 204, 196 N.E.2d 27; Laub v. City of New York, 271 App .Div. 797, 65 N.Y.S.2d 261; Blume v. City of Newburgh, 291 N.Y. 739, 52 N.E.2d 958 to the same effect.
Even if the teacher had had the game under steady observation and the measure of his supervision had been constant, an assumption that he could have anticipated what ensued would be without justifiable warrant. The teacher would be required to be invested with a profound prescience to have foreseen that Michael would attempt, after batting the ball, to run to catch it and that Tony, would suddenly run towards the ball with bat in hand and, without warning, swing with his bat at the descending ball while Michael was endeavoring to snare it.
To urge that the teacher should have anticipated each of the separate occurrences constituting the links in the chain of events hereinabove recited, or that a blast by the teacher on his whistle would have frozen the two boys into instant immobility and averted the accident which ensued, is indulgence in pure speculation....
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