SM v. Plainedge Union Free Sch. Dist.

• Court: New York Supreme Court — Appellate Division
• Citation: SM v. Plainedge Union Free Sch. Dist., 162 A.D.3d 814, 79 N.Y.S.3d 215 (N.Y. App. Div. 2018)
• Decision Date: 13 June 2018
• Docket Number: 2016–05118,Index No. 14550/13
• Parties: SM, etc., et al., respondents, v. PLAINEDGE UNION FREE SCHOOL DISTRICT, appellant.

162 A.D.3d 814

79 N.Y.S.3d 215

SM, etc., et al., respondents,

v.PLAINEDGE UNION FREE SCHOOL DISTRICT, appellant.

2016–05118

Index No. 14550/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 5, 2018

June 13, 2018

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser of counsel), for appellant.

Law Offices of Patrick J. Sullivan, PLLC, Mineola, NY, for respondents.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), dated March 24, 2016. The order denied the defendant's motion for summary judgment dismissing the complaint and granted the plaintiffs' cross motion to impose sanctions against the defendant for spoliation of evidence.

ORDERED that the order is affirmed, with costs.

During a lunch recess on October 2, 2012, the plaintiff SM (hereinafter the infant plaintiff) allegedly was injured when he fell from monkey bars on a school playground. At the time of the accident, the infant plaintiff was a fifth-grade student at Charles E. Schwarting Elementary School (hereinafter the school), which is under the control of the defendant, Plainedge Union Free School District. The infant plaintiff, by his mother and natural guardian, Mary MacDougall, and Mary MacDougall, individually (hereinafter together the plaintiffs), commenced this action against the defendant to recover damages for negligent supervision.

According to the deposition testimony of the infant plaintiff, in the moments leading up to the accident and at the time of the accident, the infant plaintiff was engaged in what was undisputedly dangerous and prohibited activity. Specifically, he had climbed on top of the monkey bars and, from the top of the bars, he did a cartwheel into a handstand followed by a swinging dismount to the ground. After successfully completing this sequence of maneuvers, the infant plaintiff made a second attempt. On his second attempt, he lost his balance while in the handstand position and was injured when he fell to the ground. According to the infant plaintiff, although school lunch aides were present and providing supervision, none of the lunch aides intervened to stop him from playing on top of the monkey bars.

According to the deposition testimony of a school lunch aide, on the day of the accident, she and two other aides were present during recess, but neither she nor any of the other aides observed any part of the infant plaintiff's conduct. The lunch aide acknowledged, however, that had she seen what the infant plaintiff was doing, she "absolutely" would have intervened and she also "probably" would have sent him to the principal's office. In addition, the lunch aide testified that the infant plaintiff was a known "trickster" when on the playground, who had been reprimanded in the past for inappropriate use of playground equipment. She believed that, although the infant plaintiff's past behavior did not require one-on-one supervision, he should be monitored "a little bit" and given more attention than other students.

According to the deposition testimony of the school principal, given the nature of the accident, an incident report was completed by the school nurse, notice was given to the school's insurance company, and a report was made directly to the "central office." In addition, immediately following the accident, the school principal reviewed surveillance footage to determine the cause of the accident.

The defendant preserved 24 seconds of surveillance footage from the day of the accident. The preserved footage shows what was alleged to have been the infant plaintiff's second attempt at the cartwheel-to-handstand maneuver. He is seen on top of the monkey bars for no more than six seconds before his fall. During the course of this litigation, the plaintiffs made a discovery demand for, inter alia, "the entire footage of the recess period leading up to the time of the accident." In response, the defendant stated that it had saved only that portion of the video which depicted the "actual accident," and claimed that because it had no prior notice of the need to preserve any additional footage. In keeping with the defendant's usual custom and practice, the remaining footage was automatically erased 30 days after the accident.

Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint and the plaintiffs cross-moved to impose sanctions against the defendant for the destruction of surveillance footage. The Supreme Court denied the defendant's motion and, in granting the plaintiffs' cross motion, directed that a negative inference charge be issued at trial against the defendant with respect to the unavailable surveillance footage. The defendant appeals.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint. While schools are not insurers of safety, as they cannot reasonably be expected to continuously supervise and control all movements and activities of students, they are nonetheless under a duty to provide adequate supervision to those in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ). In carrying out their duty, schools are obligated to exercise such care as a parent of ordinary prudence would observe in comparable circumstances (see id. at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Khosrova v. Hampton Bays Union Free Sch. Dist., 99 A.D.3d 669, 670, 951 N.Y.S.2d 235 ).

"Whether a student is properly supervised ‘depends largely on the circumstances attending the event’ " ( Mei Kay Chan v. City of Yonkers, 34 A.D.3d 540, 541, 824 N.Y.S.2d 380, quoting Farrukh v. Board of Educ. of City of N.Y., 227 A.D.2d 440, 441, 643 N.Y.S.2d 118 ). Generally, the adequacy of a school's supervision of its students and whether inadequate supervision was the proximate cause of a student's injury are triable issues of fact (see DiGiacomo v. Town of Babylon, 124 A.D.3d 828, 829, 2 N.Y.S.3d 548 ; Palmer v. City of New York, 109 A.D.3d 526, 527, 970 N.Y.S.2d 583 ; Braunstein v. Half Hollow Hills Cent. Sch. Dist., 104 A.D.3d 893, 894, 962 N.Y.S.2d 340 ). However, "[w]here an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted" ( Convey v. City of Rye School Dist., 271 A.D.2d 154, 160, 710 N.Y.S.2d 641 ; see Luciano v. Our Lady of Sorrows School, 79 A.D.3d 705, 911 N.Y.S.2d 911 ).

Here, the defendant failed to establish, prima facie, that it provided adequate supervision to the infant plaintiff, or that the lack of adequate supervision was not a proximate cause of the infant plaintiff's injury (see DiGiacomo v. Town of Babylon, 124 A.D.3d at 829, 2 N.Y.S.3d 548 ; Osmanzai v. Sports & Arts in Schools Found., Inc., 116 A.D.3d 937, 938, 983 N.Y.S.2d 848 ; Palmer v. City of New York, 109 A.D.3d at 527, 970 N.Y.S.2d 583 ; Braunstein v. Half Hollow Hills Cent. Sch. Dist., 104 A.D.3d at 894, 962 N.Y.S.2d 340 ). In support of its motion for summary judgment, the defendant relied upon, inter alia, the deposition testimony of the infant plaintiff, the deposition testimony of the school lunch aide, and the preserved surveillance footage. Viewing this evidence in the light most favorable to the plaintiffs (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ), there are triable issues of fact as to whether the infant plaintiff's alleged prior conduct and his reputation warranted more appropriate supervision, or heightened supervision, and, if so, whether such supervision would have prevented the accident (see DiGiacomo v. Town of Babylon, 124 A.D.3d at 829, 2 N.Y.S.3d 548 ; Oliverio v. Lawrence Pub. Schools, 23 A.D.3d 633, 635, 805 N.Y.S.2d 638 ). The evidence submitted in support of the defendant's motion for summary judgment did not establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it (see DiGiacomo v. Town of Babylon, 124 A.D.3d at 829, 2 N.Y.S.3d 548 ; Oliverio v. Lawrence Pub. Schools, 23 A.D.3d at 635, 805 N.Y.S.2d 638 ; Douglas v. John Hus Moravian Church of Brooklyn, Inc., 8 A.D.3d 327, 328, 778 N.Y.S.2d 77 ; cf. Simonides v. Eastchester Union Free Sch. Dist., 140 A.D.3d 728, 730, 31 N.Y.S.3d 210 ; Reardon v. Carle Place Union Free School Dist., 27 A.D.3d 635, 636, 813 N.Y.S.2d 150 ). Additionally, the doctrine of primary assumption of risk is not an applicable defense to the facts herein (see Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 901 N.Y.S.2d 127, 927 N.E.2d 547 ; Duffy v. Long Beach City Sch. Dist., 134 A.D.3d 761, 763–764, 22 N.Y.S.3d 88 ). Since the defendant failed to establish its prima facie entitlement to judgment as a...