Tomlinson v. Board of Educ. of City of Elmira

• Decision Date: 14 May 1992
• Citation: Tomlinson v. Board of Educ. of City of Elmira, 583 N.Y.S.2d 664, 183 A.D.2d 1023 (N.Y. App. Div. 1992)
• Parties: , 74 Ed. Law Rep. 1262 Sylvia TOMLINSON, Individually and as Parent and Natural Guardian of Eric Tomlinson, an Infant, Respondent, v. BOARD OF EDUCATION OF THE CITY OF ELMIRA, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 664

583 N.Y.S.2d 664

183 A.D.2d 1023, 74 Ed. Law Rep. 1262

Sylvia TOMLINSON, Individually and as Parent and Natural Guardian of Eric Tomlinson, an Infant, Respondent, v. BOARD OF EDUCATION OF THE CITY OF ELMIRA, et al., Appellants.

Supreme Court, Appellate Division Third Department.

May 14, 1992.

Smyk, Smyk & Fahrenz (Theodore J. Mlynarski Jr., of counsel), Binghamton, for appellants.

Aswad & Ingraham (Richard N. Aswad, of counsel), Binghamton, for respondent.

Before WEISS, P.J., and CREW, MAHONEY, CASEY and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Swartwood, J.), entered August 19, 1991 in Chemung County, which denied defendants' motion for summary judgment dismissing the complaint.

On October 22, 1984, Eric Tomlinson, then 11 years old, was a sixth grade student at Riverside Elementary School in the City of Elmira, Chemung County. Because of bad weather that day, Tomlinson and his classmates were required to stay indoors after lunch for the noon recess period rather than being allowed to go outside. While Tomlinson's teacher took her lunch break, a classroom aide would alternately check in on Tomlinson's class and another classroom. Upon entering their classroom, Tomlinson and six other boys proceeded to gather around a table in the back of the classroom and began listening to some tape recordings with the use of earphones, a permitted activity. According to Tomlinson, the volume on the tape player was low and he had to stand up twice to readjust the volume before he sat down again. The second time he went to sit down, however, someone pulled his chair out from under him and Tomlinson fell, hitting his head and sustaining personal injuries. Tomlinson testified that no classroom aide was present in the classroom at the time of his fall. Alleging negligent supervision, plaintiff thereafter commenced this action individually and on her son's behalf against the City's Board of Education and School District. Issue was joined and defendants subsequently moved for summary judgment. Supreme Court denied the motion and defendants appeal.

We reverse. While it is beyond cavil that a school district is obligated to adequately supervise the activities of students within its charge, it is equally true that a school is not an insurer of its students' safety and will be held liable only for foreseeable injuries proximately related to the absence of supervision (Hanley v. Hornbeck, 127 A.D.2d 905, 906, 512 N.Y.S.2d 262). Because plaintiff in this case has failed to produce any proof that negligence on the part of defendants proximately caused the subject accident, defendants' motion for...