Opinion
13/1567
08-22-2016
Hailey Ranous, an infant by Parent and Natural Guardian, Harold Ranous, Plaintiffs, v. Gates-Chili Central School District, Defendant. Gates-Chili Central School District, Defendant/Third-Party Plaintiff, v. Bruce's Mobile Skating, Paul Road School and Family Association, Third-Party Defendants.
Attorney for Plaintiff: John Wright, Esq. Cellino & Barnes, P.C. Attorney for Defendant/Third-Party Plaintiff: James H. Cosgriff, III, Esq. Petrone & Petrone, P.C. Attorney for Third-Party Defendants: Matthew A. Lenhard, Esq. Rupp, Baase, Pfalzgraff, Cunningham, LLC
Attorney for Plaintiff: John Wright, Esq. Cellino & Barnes, P.C. Attorney for Defendant/Third-Party Plaintiff: James H. Cosgriff, III, Esq. Petrone & Petrone, P.C. Attorney for Third-Party Defendants: Matthew A. Lenhard, Esq. Rupp, Baase, Pfalzgraff, Cunningham, LLC Richard A. Dollinger, J.
In 2012, the infant plaintiff, then a primary school student, was knocked to the ground from behind by another student while roller skating in the school gymnasium during a physical education exercise. She sustained two fractures as a result of the fall. Thereafter, through her father, she commenced an action against the defendant, Gates-Chili Central School District ("the district"), alleging negligence in failing to provide adequate supervision and mandating participation in the roller skating, which the plaintiff characterized as an inherently dangerous activity. The district later filed a third-party complaint against Bruce's Mobile Skating, the provider of the roller skates and a supervisor of the activity and the third-party co-defendant Paul Road School and Family Association, which had volunteers participate in supervising the event. The district now moves for summary judgment to dismiss the complaint and the third-party defendant Bruce's Mobile Skating similarly moves for summary judgement dismissing the third-party complaint. The plaintiff, in seeking to avoid summary judgment, submits an affidavit from an attorney and references portions of the infant's plaintiff's sworn deposition testimony regarding allegedly disputed facts.
The court need not repeat, at length, the touchstone for motions for summary judgment. CPLR 3212. If the defendants make a prima facie showing of entitlement to judgment as a matter of law because there is no dispute over material facts, the burden shifts to the plaintiff to raise a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1986). If the plaintiff fails to do so, the defendant's motion must be granted. 230 Park Ave. Holdco, LLC v Kurzman Karelsen & Frank, LLP, 27 NY3d 1109 (2016)
Initially, the plaintiff alleges that the school district failed to provide adequate supervision and this failure was the proximate cause of the plaintiff's injuries. The district argues that no amount of supervision could have prevented the unforeseeable and sudden nature of the accident and hence, this aspect of the claim should be dismissed. Undisputed proof establishes that at least four parent volunteer chaperones were present to assist two teachers and the skating operator to supervise approximately 40 students during the skating and also establishes that the child fell and broke her leg because a student bumped into her from behind. The child could not see the skater, did not know who the fellow skater was nor estimate how fast the apparently careless student was skating. This undisputed description of how the child was injured qualifies the collision as "sudden and abrupt." Baker v. Eastman Kodak Co., 34 AD2d 886 (4th Dept. 1970) aff'd Baker v. Eastman Kodak Co., 28 NY2d 636 (1971). The Appellate Division, Fourth Department, in that case involving a roller skating rink at Kodak Park in Rochester, defined a "sudden and abrupt action" as that "which happened in a matter of seconds and could not have been anticipated or avoided by the most intensive supervision." Accord, Jackson v. Out East Family Fun, LLC, 79 AD3d 817 (2nd Dept. 2010) (where the accident occurred as a result of a "sudden and abrupt action" and "could not have been . . . avoided by the most intense supervision," liability cannot be imposed on the owner); Swan v. Town of Brookhaven, 32 AD3d 1012 (2nd Dept. 2006) (an "abrupt and sudden" accident occurs in "so short a span of time that even the most intense supervision could not have prevented it."); Convey v. City of Rye Sch. Dist., 271 AD2d 154 (2nd Dept. 2000) (an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act); Kleiner v. Commack Roller Rink, 201 AD2d 462 (2nd Dept. 1994) (collisions between roller skaters are a common occurrence and the skater is deemed to have assumed the risk of injury resulting therefrom and failed to establish that any amount of supervision by the defendant would have prevented this random collision Taynor v. Skate Grove at Lake Grove, Inc., 150 AD2d 362 (2nd Dept. 1989) (defined the accident as "abrupt and sudden" if there did not exist "sufficient length of time as to charge the defendant with notice of such activity"). In this case, the injury to plaintiff was caused by being struck by another student, a collision that happened in "so short a span of time" or "a matter of seconds" and could not have been prevented by the most intense supervision. It happened so fast and unexpectedly that the injured plaintiff herself could not even see the person or estimate how fast the fellow student was moving upon striking her.
Because the cause of the infant plaintiff's injuries was an "abrupt and sudden" action, she has no claim against either the district or the skating operator for negligence based on inadequate supervision. To fulfill its obligation to protect the safety of the plaintiff, the district was required to exercise such care of their students "as a parent of ordinary prudence would observe in comparable circumstances" Swan v. Town of Brookhaven, 32 AD3d at 1102, citing Mirand v. City of New York, 84 NY2d 44, 49 (1994). However, when an "abrupt and sudden" action is the proximate cause of injuries, and "no amount of supervision could have prevented the accident," neither the district nor the skating operator can be faulted. Blashka v. South Shore Skating, 193 AD2d 772 (2nd Dept. 1993); Tassieli v. United Skates of Am., Inc., 33 AD3d 908 (2nd Dept. 2006). In light of these precedents, the claim for negligence based on inadequate supervision is dismissed.
The plaintiff also alleges that the district was negligent in mandating the plaintiff to participate in an inherently dangerous activity, i.e., roller skating. The New York courts have declined to categorize roller skating as "inherently dangerous." Blashka v. South Shore Skating, 193 AD2d 772 (2nd Dept. 1993) (neither the sponsor nor the rink had a duty to instruct beginners in skating, an activity that was not inherently dangerous); Sabey v. Hudson Valley Girl Scout Council, Inc., 16 AD2d 525 (3rd Dept. 1962) (roller skating not inherently dangerous); Gafner v. Chelsea Piers, L.P., 27 AD3d 353 (1st Dept. 2006) (even ice skating held not inherently dangerous); Fraser v City of New York, 2008 NY Slip Op 33210 (U) (Sup. Ct. New York Cty. 2008) (rolling skating not inherently dangerous); Islam v. City of New York, 16 Misc 3d 1102 (A) (Sup. Ct. Kings Cty. 2007). Because the activity is not, as a matter of law, inherently dangerous, the question of whether the district "mandated" that the infant plaintiff participated is cast in a different light. In Melnik v Island Trees Mem. Middle School, 31 Misc 3d 1239 (A) (Sup. Ct., Nassau Cty. 2011), almost identical circumstances existed. The roller skating infant plaintiff was struck from behind by an unknown skater and fell, injuring his wrist. The infant plaintiff claimed that he did not voluntarily confront the risks attendant to roller skating and that he was expressly told by his teacher that he was required to participate, the same general allegation made in this matter. The court in Melnik v Island Trees Mem. Middle School described this theory as "inherent compulsion." As described by the court:
The theory of inherent compulsion provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior. The two elements which must exist in order to establish liability predicated upon inherent compulsion include the following: "a direction by a superior to do the act," and; "economic compulsion or other circumstance which equally impels" the actor to comply with the direction given.
As the Court of Appeals noted, "inherent compulsion" changes the usual theory of assumption of risk. In Benitez v. New York City Bd. of Educ., 73 NY2d 650. 658-9 (1989), the court noted that if a supervisor compels an individual to be exposed to a undisclosed or unknown risk, the implied assurance of safety in the supervisor's direction or command negates the plaintiff's assumption of the risk because the supervisor is requiring action despite otherwise prudent cautionary concerns. To invoke this doctrine here, the plaintiff, in this case, must establish facts that she had no choice but to follow a district official's direction to skate and that district officials failed to disclose enhanced risk factors only known by or communicated to district personnel. Maddox v City of New York, 66 NY2d 270, 279 (1985). In essence, the plaintiff in this case must establish that the teachers, who allegedly compelled the plaintiff to skate, knew about enhanced or unknown risk factors and failed to communicate them to the injured plaintiff. However, when an individual voluntarily elects to partake in a particular activity or fails to present evidence that he had "no choice," the inherent compulsion doctrine is inapplicable. Musante v. Oceanside Union Free School Dist., 63 AD3d 806 (2d Dept. 2009).
In this instance, there is no evidence that district officials who supervised the skating knew about any enhanced or unknown risks inherent in roller skating. They were under no obligation to advise the plaintiff about any greater risks: the only risk that the plaintiff was exposed to - the risk of falling while skating or being struck by another skater and then falling - was easily apparent to anyone. Therefore, even if the infant plaintiff were "compelled" to skate - a fact that in considering this motion the court must concede because it must view the evidence most favorably to the plaintiff - nonetheless, the plaintiff was not exposed to any greater risks other than those inherent in roller skating.
Second, the infant plaintiff, when asked whether she was told - or rather that she "felt" - that she had to participate in the skating, testified that she could not remember. In contrast, both the skating company official present when the accident occurred and school district officials testified, unequivocally, that skating was not mandatory and that, in other instances, when roller skating occurred in the school, children did not participate and watched from nearby mats. There is no evidence that a child's skills in roller skating were graded or a factor in the child's academic career. Simply put, in the face of a direct denial from all the officials present, the infant plaintiff's failure to remember any command to participate does not suffice to create a dispute over a material fact sufficient to deny summary judgment. There is no evidence that the child was told that she had to skate or face any consequences. Therefore, there is no evidence of any "economic" - or even academic - compulsion for the child to participate in roller skating.
Third, there is no dispute that while the injured plaintiff's parents were opposed to her participating in the skating and had written a note asking that she not participate, the child still participated. She testified that she took skates from the skate provider and a teacher helped lace up her skates. There is no evidence that the infant plaintiff told a teacher, prior to putting on her skates, that she did not want to participate or, that on that date, told the teacher that her parents did not want her to participate. The infant plaintiff testified that after getting a pair of skates, she fell several times and then told a teacher that she had fallen and said she did not want to skate anymore. The teacher, according to the infant plaintiff, told her to go slower and "keep skating." The infant plaintiff said, "okay" and continued to skate. This court declines to hold that a teacher comment - "slow down and keep skating" - is a command that compelled the infant plaintiff to continue to skate. This comment appears, under the circumstances, to be an encouragement to the child to alter her speed and continue to skate, which she did. Even if this comment by a teacher while the infant plaintiff was already skating is interpreted as some form of command, the evidence is undisputed that the plaintiff did not object to skating until after she had already commenced skating. The infant plaintiff knew the risks of skating when she talked to the teacher. She testified that she had fallen several times before even talking to the teacher and then when being advised to "slow down," she continued to participate. Under these circumstances, it is undisputed that the infant plaintiff voluntarily participated in this activity which was not inherently dangerous and no one failed to disclose any greater risks than those obvious to any participant, including the infant plaintiff. Under these undisputed facts, the "inherent compulsion" doctrine does not supplant the assumption of risk as a defense to the infant's plaintiff's claim.
The district's motion for summary judgment dismissing the complaint is granted. Because there is no liability for the district, the third-party complaints are dismissed as well. Dated:August 22, 2016 Richard A. Dollinger, A.J.S.C.