Totan v. Board of Educ. of City of New York

• Decision Date: 14 September 1987
• Citation: Totan v. Board of Educ. of City of New York, 519 N.Y.S.2d 374, 133 A.D.2d 366 (N.Y. App. Div. 1987)
• Parties: , 42 Ed. Law Rep. 328 Simona TOTAN, etc., et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 374

519 N.Y.S.2d 374

133 A.D.2d 366, 42 Ed. Law Rep. 328

Simona TOTAN, etc., et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 14, 1987.

Panken, Besterman, Winer, Becker & Sherman, c/o Siff, Newman, Rosen & Parker, P.C., New York City (Thomas R. Newman and Ann Bickford, of counsel), for appellants.

Peter L. Zimroth, Corp. Counsel, New York City (Larry A. Sonnenshein and Dana Robbins, of counsel), for respondent.

Before MOLLEN, P.J., and MANGANO, BROWN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Lerner, J.), entered March 24, 1986, which, after a jury trial on the issue of liability only, and upon denying their motion to set aside that branch of the verdict finding the infant plaintiff 25% percent at fault in the happening of the accident, and granting the defendant's cross motion to set aside that branch of the verdict finding it 75% at fault, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

On June 4, 1982, the infant plaintiff, then an 11-year-old, fifth-grade pupil at P.S. 88 in Queens, was injured while playing the game of "Red Rover" in the schoolyard during lunch recess. According to the testimony presented at the trial, school regulations prohibited children from engaging in this game which involved running and pushing through a line of children linked together hand to hand. At the time of the accident, five school aides and one teacher were on duty supervising the approximately 250 to 275 children in the schoolyard. However, none apparently witnessed the accident resulting in the alleged injuries.

In presenting their case, the plaintiffs relied solely upon the testimony of the infant plaintiff and that of a school aide, Mrs. McCarthy, who assisted the injured child after the accident. The plaintiffs' position was essentially that the school personnel on duty knew or should have known that the infant plaintiff was engaged in a dangerous activity with other pupils and, despite adequate notice, failed to put a stop to the game prior to the accident. The defendant's counterposition was that it provided reasonable supervision and did not have actual or constructive notice that the infant plaintiff and a small group of pupils were engaged in the subject activity so as to be able to prevent its continuance prior to the accident.

The plaintiffs did not dispute the statement in a school accident report that the accident occurred at 1:16 P.M. The infant plaintiff testified that she joined the other children in the schoolyard after lunch at about 1:00 P.M. As she entered the schoolyard, she observed that Mrs. McCarthy was standing in the yard along with other teachers and school aides. Although the infant plaintiff testified that she and a group of children were playing the game for approximately 10 or 15 minutes before the accident occurred, on cross-examination, she admitted that she had been in the playground for about five or 10 minutes prior to being asked to join in the game, and that it took another four or five minutes to choose up the two teams of six children each required for the game to progress. At first, she was on the team of children that linked hands standing side by side in a straight line while the opposing team members, one by one, ran and tried to break through the line. She estimated that it took only a few seconds for each runner to complete his or her turn, and then the opposing team assumed the position of...