Siewert v. Loudonville Elementary School
| Decision Date | 01 December 1994 |
| Citation | 620 N.Y.S.2d 149,210 A.D.2d 568 |
| Parties | , 96 Ed. Law Rep. 1055 David W. SIEWERT, Individually and as Parent and Natural Guardian of Rachel A. Siewert, an Infant, Appellant, v. LOUDONVILLE ELEMENTARY SCHOOL et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
E. Stewart Jones (Peter J. Moschetti Jr., of counsel), Troy, for appellant.
Carter, Conboy, Case, Blackmore, Napierski & Maloney P.C. (James A. Resila, of counsel), Albany, for respondents.
Before CARDONA, P.J., and WHITE, CASEY and YESAWICH, JJ.
Appeal from an order of the Supreme Court (Keegan, J.), entered December 20, 1993 in Albany County, which, inter alia, granted defendants' motion in limine.
Plaintiff's daughter, an eight-year-old third-grade student at defendant Loudonville Elementary School, was injured during a recess period while snow sliding down a hill with 23 other children in her class. The activity consisted in the children squatting on their haunches and allowing their feet to slide the length of the slippery surface into a snow bank that had been plowed from the parking lot onto the base of the hill. On the day of the accident the school-appointed noontime aide denied the infant permission to slide since she was wearing only sneakers and had not brought a pair of boots with her. Despite the refusal of permission, however, the infant waited about 15 minutes, until the aide's attention was otherwise diverted, and then slid down the hill and into the snow bank causing her injuries.
The amended complaint in the action for damages on the infant's behalf alleges two distinct legal theories of liability. The first is negligent supervision. The second is defendants' actual knowledge, or at least constructive notice, of a hazardous condition consisting of the snow or ice mound on their property. Following the joinder of issue and examinations before trial, defendants moved for summary judgment on the specific grounds that the infant's injury was not proximately caused by lack of supervision, but by her own negligent conduct, and that the snow bank did not constitute a dangerous or defective condition. In support of their motion, defendants submitted adequate proof in admissible form in respect to both theories of liability. In response, plaintiff made a sufficient showing to raise an issue of fact with respect to the claim of inadequate supervision only. On this limited showing by plaintiff, Supreme Court, by order dated September 20, 1993, denied defendants' summary judgment motion. Shortly thereafter, when the case was called for trial, defendants moved in limine to preclude testimony ...
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