Opinion
2003-03665.
Decided June 7, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated March 6, 2003, which granted the defendants' motion for summary judgment dismissing the complaint.
Kahn Gordon Timko Rodriques, P.C., New York, N.Y. (Nicholas I. Timko and Cynthia P. Camacho of counsel), for appellants.
Renee Simon Lesser, New York, N.Y., for respondents.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
On August 6, 1998, at approximately 3:30 P.M., the nine-year old infant plaintiff was participating in the defendants' summer camp day care program located in the basement auditorium of their facility on Ocean Avenue.
The infant plaintiff allegedly was injured during a game of tag when, as he ran, another participant tagged him and the force of the tag caused him to fall. As the infant plaintiff attempted to arise, the other child reportedly fell on him causing injury to his arm.
The plaintiffs subsequently commenced this action alleging negligent supervision. The defendants moved for summary judgment dismissing the complaint on the grounds that the incident was the result of an unanticipated and spontaneous act and because the infant plaintiff allegedly assumed the risks inherent in participating in the game. The Supreme Court granted the motion finding that, while a triable issue of fact exists as to whether the defendants adequately supervised the infant plaintiff, he had voluntarily assumed the risk.
The Supreme Court correctly determined that a triable issue of fact exist as to the adequacy of the defendants' supervision and whether closer supervision would have prevented the accident. "While schools are not insurers of their students' safety since they cannot reasonably be expected to continuously supervise and control all of their movements and activities ( see Mirand v. City of New York, 84 N.Y.2d 44, 49; Hernandez v. Christopher Robin Academy, 276 A.D.2d 592), they have a duty to provide supervision to ensure the safety of those students in their charge, and are liable for foreseeable injuries proximately caused by the absence of adequate supervision" ( Kandkhorov v. Pinkhasov, 302 A.D.2d 432, 433; Capotosto v. Roman Catholic Diocese of Rockville Ctr., 2 A.D.3d 384). "The defendants, as providers of day care services, owed the plaintiff[s] the same duty of care and supervision owed by a reasonably prudent parent under the circumstances" ( Colarusso v. Dunne, 286 A.D.2d 37, 40).
During a deposition, the defendants' principal acknowledged that while the children were allowed to play certain games such as jump rope, musical chairs, and pass the ball in the auditorium when supervised by a teacher, they were not permitted to chase one another or play tag. If they did so, the teachers were instructed to tell the children to sit down. The infant plaintiff, however, testified that he and his friends had been engaged in their game of tag for approximately one-half hour before the accident. Moreover, while two teachers and a few teenage counselors were in the auditorium at the time of the accident, they allegedly were engaged in other activities and not supervising the children. The infant plaintiff therefore purportedly was participating in a prohibited activity for an extended period of time and more intense supervision may have prevented the accident ( see Johnson v. City of New York, 309 A.D.2d 671; Singh v. Persaud, 269 A.D.2d 381; cf. Lemos v. City of Poughkeepsie School Dist., 299 A.D.2d 327; Santana v. City of New York, 282 A.D.2d 208, Capotosto v. Roman Catholic Diocese of Rockville Ctr., supra at 386).
Contrary to the conclusion of the Supreme Court, however, while the infant plaintiff was a willing participant in the game, in light of his age and limited experience, it can not presently be determined as a matter of law that he was aware of and fully appreciated the risks involved in the activity in which he was engaged ( see Kroll v. Watt, 309 A.D.2d 1265; Trainer v. Camp Hadar Hatorah, 297 A.D.2d 731; Convey v. City of Rye School Dist., 271 A.D.2d 154; cf. Lumley v. Motts, 1 A.D.3d 573; Schneider v. Levittown Union Free School Dist., 303 A.D.2d 394).
Accordingly, the Supreme Court erred in granting the defendants' motion for summary judgment dismissing the complaint.
SMITH, J.P., GOLDSTEIN, ADAMS and TOWNES, JJ., concur.