Rodriguez v. Board of Educ. of City of New York
| Decision Date | 22 October 1984 |
| Citation | 480 N.Y.S.2d 901,104 A.D.2d 978 |
| Parties | , 21 Ed. Law Rep. 280 Juan RODRIGUEZ, etc., et al., Respondents, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Stephen J. McGrath and June A. Witterschein, New York City, of counsel), for appellant.
Eichner, Herman & Volet, New York City (Harold Samuel Herman, New York City, of counsel), for respondents.
Before MOLLEN, P.J., and LAZER, GIBBONS and BROWN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., defendant appeals from a judgment of the Supreme Court, Kings County, entered May 25, 1983, which awarded plaintiff Juan Rodriguez the principal sum of $400,000 and awarded plaintiff Maria Maldonado the principal sum of $29,276.32, upon a jury verdict.
Judgment affirmed, with costs.
On September 16, 1977, Juan Rodriguez, then 12 years old, was enrolled in one of two special classes for trainable mentally retarded children 1 at P.S. 261 in Brooklyn. Juan's teacher, Beverly Kolstein, took the class of approximately 16 children outside to the kindergarten playground at about 11:00 A.M. for what she referred to as a supervised play period. The primary purpose of this period was to "normalize" each child's experience as much as possible and allow him or her to independently select games or playground equipment. The teacher's function was to encourage the children to exercise. While Kolstein was talking to a small group of children, she first observed Juan and another pupil running and chasing each other. Juan was approximately two or three feet away from her at that time. The two boys continued to run and then disappeared from Kolstein's view for about 10 to 15 seconds. Thereafter, Kolstein turned around and saw Juan lying face down at the foot of a set of steps leading back to the kindergarten classrooms. Juan did not speak. No one saw what had happened. As a result of the fall, Juan suffered extensive head injuries.
Plaintiffs commenced the instant action. At a bifurcated trial, Kolstein was called as a witness for plaintiffs on the question of liability. She testified that Juan had been a pupil in her classes for two years at the time of the accident. Kolstein further testified that she was aware of Juan's perceptual motor difficulties and poor eye-hand co-ordination. She described his manner of running as a clumsy, "lumbering" gait. In addition, Kolstein testified that Juan and the other boy with whom he had been running on September 16, 1977, often played a chasing game called "monster" during supervised play periods in the past, although, prior to said date, there had never been any injury suffered as a result of this activity. Kolstein testified that on the date of the accident, she did nothing to prevent the boys from running, nor did she try to ascertain their whereabouts as they disappeared briefly behind a storage building in the playground.
Plaintiffs called an expert witness who was trained in the field of special education and familiar with the teaching policies of various school districts partially due to her experience as an employee of defendant for 36 years. The expert witness testified, in essence, that purposeless, freestyle running during school hours was dangerous and never permitted for any child, but was especially hazardous where mentally retarded children were concerned. She further testified that the proper procedure for a teacher to follow under the circumstances at bar would have been to stop the children, either by word or physical act. 2
In our view, plaintiffs established a prima facie case of defendant's...
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