Opinion
22691/05.
Decided November 25, 2008.
Plaintiffs were represented by Christopher Caputo, Esq. Defendants were represented by Allyson P. Lubell, Esq. of Morris Duffy Alonso and Faley.
The Verified Complaint of plaintiff Alexander Benedek, on behalf of himself and his infant son, plaintiff Shimon Benedek, seeks damages for personal injury that the infant allegedly sustained on July 30, 2002 while at defendant Camp Toras Chaim, a summer camp owned and operated by defendants Richland Manor Associates, LLC and Camp Keser Toras Chaim, Inc. With this motion, Defendants seek an order, pursuant to CPLR 3212, dismissing the Verified Complaint.
As revealed by the deposition transcripts of the infant plaintiff and of the president of the Camp, Shaya Gitelis, included as exhibits to Defendants' motion, many material facts are undisputed. The Camp provides boys of Shimon's age, which was 13 on the date of his injury, with opportunities for religious study and worship, in addition to the activities that are customarily available at summer camps. Shimon had been at the camp for three to four weeks before the date of his injury, participating in physical activities and contact sports, including baseball, swimming, basketball, hockey, soccer, football and hiking. The campers were organized into age groups, and supervised by counselors, who were older boys.
On the day Shimon was injured, his regular counselor, Fishy Vail, was not on duty, and Shimon's group was supervised by a substitute, Moshe Failak. It was during a break between activities, on a grassy area in front of Shimon's cabin, that the alleged injury-producing incident occurred. Shimon was "horsing around" and "jumping around" with two other campers and a waiter, Moshe Dahari, who was "playing with" the campers. (Examination Before Trial of Shimon Benedek at 23.)
As described by Shimon at his deposition, he "jumped on" the waiter's back, and "got thrown off it"; the waiter "threw him off it, and [he] landed on [his] two palms and [his] elbow sort of popped out of place." ( Id. at 24.) "Before the accident occurred," Shimon had jumped on the waiter's back more than once, but Shimon was not asked, and did not say, whether he was then "thrown off it." ( Id.) Shimon's counselor was not present when the incident occurred, and had not been for what "[c]ould be 10" minutes. ( Id. at 44.)
There is no information in the deposition testimony or otherwise in the record on this motion about Shimon's height or weight on July 30, 2002, and no information about the waiter's age, height or weight, except that he was "older" than Shimon ( id. at 22.) The record does not indicate whether Moshe Failak, the counselor, or Moshe Dahari, the waiter, are available, but presumably they have not been examined.
Although, as previously noted, Defendants provide the deposition testimony of Shaya Gitelis, they do not quote or cite any of that testimony. Of particular importance, Mr. Gitelis testified that the campers were "[a]bsolutely not" "allowed to be unsupervised at times during the day." (Examination Before Trial of Shaya Gitelis at 26.) Mr. Gitelis also testified that camp employees, other than the assigned counselors, were not "allowed to mingle with the campers without the counselors ( sic) permission." ( Id at 28.) When asked whether he was "ever made aware of complaints about campers and counselors fooling around or horsing around outside of what the structured activities were," Mr. Gitelis answered, "It happens." ( Id. at 38.)
In the interest of completeness, and although hearsay and not cited by Defendants, Mr. Gitelis offered a somewhat different account of the alleged injury-producing incident: "The kid was horsing around. He jumped . . . on top of a counselor or staff member and fell the wrong way, and landed the wrong way." ( Id. at 29.) Had Plaintiffs alleged that Defendants are vicariously liable for the conduct of the waiter, whether Shimon was "thrown off" or fell off the waiter's back might be particularly relevant, but Plaintiffs do not allege vicarious liability.
Rather, in two causes of action in their Verified Complaint (a third alleges the father's derivative claim), Plaintiffs allege the direct negligence of Defendants both with respect to the supervision of the campers, the First Cause of Action, and with respect to the supervision of its employees, the Second Cause of Action. As summarized in the Verified Bill of Particulars (¶ 4): "Plaintiff was injured due to the lack of proper ownership and operation of the camp and the lack of proper and adequate supervision, management, control, instruction and monitoring of the campers, employees and/or counselors by the defendants, their agents, servants and employees."
Defendants make no factual showing as to either of Plaintiffs' causes of action, other than the infant plaintiff's account of the alleged injury-producing incident. Rather, Defendants argue, in effect, based upon cited caselaw, that, as a matter of law, they did not breach any duty owed to the infant plaintiff; and that, in any event, as a matter of law, he assumed the risk of any injury he sustained.
"Camp employees have a duty to supervise their campers as reasonably prudent parents would supervise their children under the same circumstances." ( Ragusa v Town of Huntington , 54 AD3d 743 , 743 [2d Dept 2008]; see also Kosok v Young Men's Christian Ass'n, 24 AD2d 113, 115 [1st Dept 1965], aff'd 19 NY2d 935; Gibbud v Camp Shane, Inc ., 30 AD3d 865 , 866 [3d Dept 2006]; Douglas v John Hus Moravian Church of Brooklyn, Inc ., 8 AD3d 327 , 328 [2d Dept 2004]; Phelps v Boy Scouts of America, 305 AD2d 335, 335 [1st Dept 2003].) "Remembering that this is a Summer camp, . . . constant supervision is not feasible"; "[n]or is it desirable." ( Kosok v Young Men's Christian Ass'n, 24 AD2d at 115; Phelps v Boy Scouts of America, 305 AD2d at 335-36.) "A certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children's camps"; "[i]t is only to be discouraged when it becomes dangerous." ( Kosok v Young Men's Christian Ass'n, 24 AD2d at 115; see also Gibbud v Camp Shane, Inc., 30 AD3d at 866.)
The case closest to this one on the facts of which this Court is aware is Gibbud v Camp Shane, Inc. ( 30 AD3d at 865.) There, a 15-year-old camper "fractured his right ankle when he attempted to engage in horseplay in his cabin by jumping on his counselor's back." ( Id. at 866.) The counselor "immediately raised his arms, shrugging plaintiff off"; "plaintiff slid off [the counselor's] back and fell to the floor." ( See id.) At the time, the counselor was attempting to "quell horseplay" in the cabin. ( See id.)
The Third Department found "no factual basis to conclude that [the counselor's] response[ ] to . . . having been set upon from behind by plaintiff [was] negligent," noting that "a parent, teacher or other person entrusted with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline." ( See id. at 866-87.) The plaintiff was 6 feet 3 inches and weighed 302 pounds; the counselor was 6 feet 2 inches and weighed 335 pounds. "Given that [the counselor] did not know who had suddenly jumped on his back, his reaction to being blindsided . . . by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force." ( See id.) The court also stated that the plaintiff's "own impulsive act of grabbing [the counselor] from behind . . . led to his injury." ( See id. at 867; see also Gustin v Association of Camps Farthest Out, Inc., 267 AD2d 1001, 1003 [4th Dept 1999].) The Court will return to this latter point presently.
What distinguishes this case from Gibbud, and from the authorities Defendants rely upon, is that here the infant plaintiff's counselor was absent, and another employee of the camp was voluntarily participating in the "horseplay" — at least according to the uncontradicted account of the infant plaintiff — and that both of those conditions were apparently contrary to the Camp's rules according to its president. ( See Oliverio v Lawrence Public Schools , 23 AD3d 633 , 633-34 [2d Dept 2005]; Rivera v Board of Educ. of City of Yonkers , 19 AD3d 394 , 394-95 [2d Dept 2005]; Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d at 328; Phelps v Boy Scouts of America, 305 AD2d at 336; Barretto v City of New York, 229 AD2d 214, 219-20 [1st Dept 1997].)
Defendants make no showing that the absence of the counselor was not a breach of the Camp's duty of adequate supervision, or that any breach was not a proximate cause of the infant plaintiff's injury. Had the counselor been present, he might have stopped the "horseplay," particularly if, as the infant plaintiff testified, the infant plaintiff had previously jumped on the waiter's back; or the counselor may have prohibited the waiter's participation. ( See Doe v Fulton Sch. Dist ., 35 AD3d 1194 , 1194-95 [4th Dept 2006] ["reckless and aggressive horseplay" "consequence of the . . . failure to provide adequate supervision"]; Alferof v Casagrande, 122 AD2d 183, 184 [2d Dept 1986] ["rowdy and disruptive behavior . . . could have been prevented had the teacher been present"].) Without information about the relative height and weight of the infant plaintiff and the waiter, it cannot be said as a matter of law that the waiter's participation in the "horseplay" was not a proximate cause of the infant plaintiff's injury.
"The doctrine of [primary] assumption of risk is a form of measurement of a defendant's duty to a voluntary participant in a sporting [or recreational] activity." ( See Manoly v City of New York , 29 AD3d 649 , 649 [2d Dept 2007]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 650.) "A person who voluntarily participates in a sport or recreational activity is deemed to consent to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." ( See Casey v Garden City Park-New Hyde Park , 40 AD3d 901 , 901-02 [2d Dept 2007] [quoting Morgan v State of New York, 90 NY2d 471, 484.) "Awareness of the risks . . . is to be assessed against the background of the skill and expertise of the particular plaintiff." ( Guzman v Iceland , 18 AD3d 704 , 705 [2d Dept 2005].)
The doctrine of primary assumption of risk applies to "horseplay" ( see Davis v Kellenberg Memorial H.S., 284 AD2d 293, 294 [2d Dept 2001]; Convey v City of Rye Sch. Dist., 271 AD2d 154, 156, 158 [2d Dept 2000] ["friendly horseplay"]; see also Pena v Schur, 245 AD2d 206, 207 [1st Dept 1997] ["rough horseplay"/"sole proximate cause"]); and to "street games" like tag ( see Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d at 327), "kick the can" ( see Lumley v Motts , 1 AD3d 573 , 574 [2d Dept 2003), and "ring-o-levio" ( see Kelly v Great Neck Union Free School Dist., 192 AD2d 696, 697 [2d Dept 1993].)
Unlike sports and recreational activity that involve accepted rules or manner of play, allowing for ready determination of the "commonly appreciated risks which are inherent in and arise out of the nature of the sport [or activity] generally and flow from . . . participation" ( see Casey v Garden City Park-New Hyde Park, 40 AD3d at 901-02), "horseplay" is broadly encompassing and not self-evident. Here, the infant plaintiff's deposition testimony tells us nothing beyond "jumping around" and, specifically, jumping on the waiter's back. The infant plaintiff, who was 17 at the time of the deposition, was not questioned about the risks of "horsing around" or "jumping around," as he put it, or of jumping on someone's back.
Assuming, however, that the infant plaintiff's age at the time, 13, and his familiarity with physical activity, including contact sports, would allow for a conclusion that he appreciated the risks of jumping on someone's back, Defendants still fail to make a prima facie showing of primary assumption of risk on this record. "[N]otwithstanding a player's assumption of the risks inherent in playing any sport, school districts, athletic councils and other organizers of children's sporting activities remain under a duty to exercise ordinary reasonable care' to protect the infant participants from . . . unreasonably increased risks'." ( Karr v Brant Lake Camp, Inc., 261 AD2d 342, 342 [1st Dept 1999]; Mauner v Feinstein, 213 AD2d 383, 383 [2d Dept 1995] ["unreasonably enhanced risks"].) Summary judgment has been denied to other defendants where campers were injured at sport in which both counselors and campers participated. ( See Karr v Brant Lake Camp, Inc., 268 AD2d at 342 [baseball]; Mauner v Feinstein, 213 AD2d at 383 [rugby].)
For the same reason, Defendants here must be denied summary judgment based upon the doctrine of primary assumption of risk. As previously noted, there is no evidence as to the age, weight, or height of the waiter who, according to the infant plaintiff, was "playing with" the campers. Here, moreover, there is the added factor that such participation without the permission of the counselor, who was absent, apparently violated a Camp rule. Indeed, it is not unlikely that such rule would be based, at least in part, on concern that participation by Camp employees in the campers' activities would increase the risk of injury to campers.
Finally, although not argued by Defendants, there is the suggestion in Gibbud v Camp Shane, Inc . (30 AD3d 865) that causation principles might provide a basis for denying recovery for negligent supervision where a voluntary act by the infant brings about the injury. First, it must be noted that Gibbud is clearly a different case on its facts. There, the infant plaintiff jumped on the back of a counselor who was attempting to maintain control and discipline, and had the authority to use reasonable force to do so. Here, we have an employee, presumably without such authority, who was participating in the horseplay.
"[L]iability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight." ( Ambroise v City of New York , 44 AD3d 805 , 806 [2d Dept 2007] [quoting McLeod v City of New York , 32 AD3d 907 , 909 (2d Dept 2006) (internal quotation marks and citation omitted)].) Some decisions speak in terms of assumption of risk ( see Watson v State of New York, 77 AD2d 871, 872 [2d Dept 1980], aff'd 52 NY2d 1022; Jones v Kent, 35 AD2d 622, 623 [2d Dept 1970]); some decisions speak in terms of causation ( see Williams v City of New York , 41 AD3d 468 , 468-69 [2d Dept 2007]; Legette v City of New York , 38 AD3d 853 , 854 [2d Dept 2007]; Danna v Sewanhaka Central H.S. Dist., 242 AD2d 361, 362 [2d Dept 1997]); and at least one decision speaks in terms of both assumption of risk and causation ( see Ruggierio v Board of Educ. of the City of Jamestown, 31 AD2d 884, 884 [4th Dept 1969], aff'd 26 NY2d 849.)
There are certainly differences between voluntary participation in a "fight," where the intent is to harm, and participation in "horseplay," where the intent is to amuse. From the perspective of assumption of risk, the authority that has been discussed above, which is most directly applicable to the facts here, must be deemed controlling.
As to causation, the decisions do not explain why, despite negligent supervision, voluntary participation in a fight should be deemed the sole legal cause of resulting injury. The reason cannot be the absence of cause-in-fact; there must be cases in which the evidence shows with the requisite degree of probability that the fight would not have occurred if reasonable supervision had been provided. The reason, therefore, must be proximate cause, the doctrine that limits legal accountability even where there is cause-in-fact.
Where the act of the plaintiff or a third person intervenes between the defendant's negligence and the plaintiff's injury, "liability depends on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence," or an act "independent of or far removed from" the defendant's negligence. ( See Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315.) A plaintiff's conduct that is an "unforeseeable superseding event . . . absolves [the] defendant[ ] of liability." ( See Boltax v Joy Day Camp, 67 NY2d 617, 620.) A plaintiff's conduct that is "reckless" ( see id. at 619-20; Gustin v Association of Camps Farthest Out, Inc., 267 AD2d at 1003); "in knowing violation of school rules" ( see Mastropolo v Goshen Cent. Sch. Dist ., 40 AD3d 1053 , 1053[2d Dept 2007]); or "willful . . . and illegal" ( see Marchetti v East Rochester Cent. Sch. Dist ., 26 AD3d 881 , 881-82 [4th Dept 2006]); has been found sufficient to absolve the defendant of liability.
A student's voluntary participation in a fight, therefore, is apparently deemed the kind of "unforeseeable superseding event" that absolves a defendant of liability for negligence in supervision. One might question whether, as a matter of fact, a fight is indeed an unforeseeable consequence of negligent supervision, and suggest that the rule absolving the defendant from liability says more about the blameworthiness of the plaintiff than it does about the lack of blameworthiness of the defendant. In any event, where the plaintiff's conduct is merely negligent, it is insufficient to absolve the defendant of liability, and, rather, is considered within the statutory framework on comparative fault ( see CPLR Article 14-A), including the doctrine of "implied assumption of risk" "founded . . . on plaintiff's voluntarily encountering the risk of harm from defendant's conduct with full understanding of the possible harm to himself or herself" ( see Arbegast v Board of Educ., 65 NY2d 161, 169.)
There is no basis on this record for a finding, even on a prima facie basis, that the infant plaintiff's conduct was anything more than negligent, if that. The Court notes that the infant plaintiff testified that he had previously jumped on the waiter's back, but the waiter continued to play.
Defendants' motion is denied.