Opinion
15295/07.
Decided March 30, 2010.
Plaintiffs are represented by Greg Garber, Esq.
The defendants the City of New York, the Board of Education of the City of New York and the New York City Department of Education are represented by Kira Wallisch, Esq., of counsel, the defendant Tempositions, Inc. is represented by the Law Offices of Edward Garfinkel, by Andrew M. Bernstein, Esq., of counsel.
And the defendant Beginning With Children Charter School is represented by the law firm of Wade, Clark, Mulcahy, by Maju Varghese, Esq., of counsel.
Defendant Tempositions, Inc. d/b/a School Professionals moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor dismissing the plaintiffs' complaint and all cross-claims insofar as asserted against it. Defendants City of New York, Board of Education of the City of New York and The New York City Department of Education move for an order, pursuant to CPLR 3212, granting summary judgment dismissing all claims and cross-claims insofar as asserted against them. Defendant Beginning With Children Charter School moves for summary judgment dismissing the complaint and all cross-claims asserted against it or, in the alternative, for summary judgment in its favor on its cross-claim for indemnification against defendant Tempositions, Inc. d/b/a School Professionals.
Factual Background
This action arises out of an incident which occurred on September 15, 2006, when the then-13-year-old infant plaintiff Brandonlee Torres (hereinafter, infant plaintiff or Torres) was struck in the eye with a tennis ball during a physical education class in the gymnasium of defendant Beginning With Children Charter School (BWC), located at 185 Ellery Street, Brooklyn, New York. Defendant City of New York is the owner of the premises. BWC was part of a special charter program, pursuant to which the New York City Department of Education and the New York State Board of Regents approved of BWC's application to operate as a charter school. On the date in question, the infant plaintiff was enrolled in BWC as an eighth grade student. The incident occurred during a physical education class in BWC's gymnasium. Since the infant plaintiff's regular physical education teacher was out sick on the day in question, a substitute teacher, Patrick White, was directed to take over the class. Mr. White was employed by defendant Tempositions, Inc. d/b/a School Professionals (Tempositions). BWC had retained Tempositions to recruit, interview and provide qualified substitute teachers for certain classes.
During his deposition, the infant plaintiff testified that, at the beginning of the physical education class, Mr. White introduced himself and then directed the students (approximately 20 to 25) to have free play. At that time, the class members chose different equipment and started playing various sports at the same time, which consisted of tennis, basketball, handball, and jumping rope. According to plaintiff, ten students were playing basketball at one end of the gym, a group of students were jumping rope, and four students were playing handball. Additionally, two of the students, Skylar Ortiz and Andrew Rodriguez, were hitting a tennis ball off the wall located at the opposite end of the gym from the basketball activity. Plaintiff referred to this activity as "power" tennis because the students were hitting the ball off the gym's wall very hard. The infant plaintiff had initially started to play basketball. After approximately five minutes, he left the basketball game and walked to the opposite end of the gym near the doors in order to talk to three of his friends who were not involved in an activity. The area where the plaintiff was talking was in the vicinity of the tennis game. After talking to his friends for approximately five minutes, the infant plaintiff heard a loud noise. When he turned toward that noise, a tennis ball struck him in the left eye. According to Torres, one of the students playing tennis, Ortiz, hit the tennis ball into the wall, which caused it to ricochet into the plaintiff's left eye. The infant plaintiff did not know if the incident was an accident or if Ortiz had intentionally caused the ball to hit him.
The infant plaintiff, by his mother and natural guardian, Wilma Torres, and Wilma Torres, individually, brought this action against the City, Board of Education, Department of Education and BWC to recover damages for injuries allegedly caused as a result of, inter alia, defendants' negligent supervision of students at the school, and the failure to protect against a dangerous condition. BWC filed a third-party action against Tempositions seeking indemnification. Shortly thereafter, the plaintiff filed a supplemental summons and amended verified complaint naming Tempositions as a direct defendant in the main action. Presently, all of the defendants have moved for summary judgment dismissing plaintiffs' complaint and all claims asserted against them.
Discussion The City Defendants
Defendants the City, Board of Education and Department of Education (hereinafter, the City Defendants) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing all claims and cross claims insofar as asserted against them. In support of their summary judgment motion, the City Defendants contend that they did not owe the infant plaintiff a custodial duty of care or supervision under the circumstances presented because he was not within the orbit of the City's control. In this regard, the City Defendants point out that the incident occurred while the infant plaintiff was a student in a charter school run by BWC, which was neither owned nor controlled by the City. The City Defendants further contend that they merely permitted BWC to run a charter school and served as its school district, and that they never acquired custody or assumed any supervisory duties over the operation of the school or the infant plaintiff's classes. It is the City Defendants' contention that BWC maintained responsibility for the safety, security and supervision of the infant plaintiff at all times, as well as the hiring of all of its school employees.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact ( see Alvarez v Prospect Hospital, 68 NY2d 320; Winegard v New York Univ. Med. Ctr., 64 NY2d 851, 853), and in this regard "the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [him or] her the benefit of every favorable inference" ( Cortale v Educational Testing Serv., 251 AD2d 528, 531). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562).
It is well settled that an action for negligence does not lie unless there exists a duty on the part of the defendant and a corresponding right in the plaintiff ( see Palsgraf v Long Is. R. R., 248 NY 339, 341 [1928]). A school district's duty of care is coextensive with, and concomitant to, its physical custody and control over a child ( see Chainani v Board of Educ., 87 NY2d 370; Pratt v Robinson, 39 NY2d 554). Thus, the duty of care owed to the students is present while they are in the school's physical custody or orbit of authority, or when a specific statutory duty has been imposed ( Chainani, 87 NY2d 370).
In opposition to the City Defendants' motion, the plaintiffs have failed to carry their burden of establishing a sufficient factual predicate on which to posit a duty of care owed by the City Defendants to the infant plaintiff. The plaintiffs' claim of negligence against the City Defendants is based on the facts that a report of the incident had a heading which read "The New York City Department of Education," and that the City Board of Education approved BWC's charter school renewal application.
Here, however, the plaintiffs do not dispute that the City Defendant were not involved in the hiring of any of BWC's teachers/employees, and that it had no control or supervision over how the school was run. Although the Department of Education approved of BWC's renewal application to operate as a charter school, it is undisputed that the infant plaintiff was in the custody of BWC, not the City Defedants, at the time of the incident, while being supervised by a substitute teacher designated by BWC and employed by Tempositions. As such, it is clear that no special relationship existed-either between the City Defendants and the infant plaintiff or between the City Defendants and BWC that would have placed the City Defendants, as opposed to BWC, "in the best position to protect against the risk of harm'" ( see Jonathan A. v Board of Educ. of City of New York , 8 AD3d 80 , 81-82). Under these circumstances, the court finds that the City Defendants owed no duty to the infant plaintiff and are, therefore, entitled to summary judgment dismissing plaintiffs' complaint and all claims asserted against them ( see Jonathan A., 8 AD3d at 81-82; Oliva v City of New York, 297 AD2d 789).
BWC and Tempositions
BWC and Tempositions (collectively, Defendants) separately move for summary judgment dismissing plaintiffs' complaint and all cross claims asserted against them on the ground that there are no triable issues of fact as to their alleged negligence. Defendants contend that the infant plaintiff's injuries were not the result of negligent supervision by either BWC or Tempositions, but rather a spontaneous act, which could not have been prevented by any reasonable degree of supervision.
BWC alternatively seeks summary judgment in its favor on its third-party indemnity claim against Tempositions.
It is well settled that schools have a duty to adequately supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ( see Mirand v City of New York, 84 NY2d 44, 49; Ronan v School Dist. of City of New Rochelle , 35 AD3d 429 , 430). Schools, however, are not insurers of their students' safety "for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" ( Mirand, 84 NY2d at 49; see De Los Santos v New York City Dept. of Educ ., 42 AD3d 422 ). In an instance where injuries are caused by fellow students, a plaintiff must establish that school authorities had "sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" ( Mirand, 84 NY2d at 49; see Hernandez v Christopher Robin Academy, 276 AD2d 592).
To establish negligent supervision, a plaintiff must "demonstrate both that the defendant breached its duty to provide adequate supervision under this standard, and that this failure was the proximate cause of the plaintiff's injuries" ( Bellinger v Ballston Spa Cent. School Dist ., 57 AD3d 1296 , 1297; see Tanon v Eppler , 5 AD3d 667 , 668; Capotosto v Roman Catholic Diocese of Rockville Ctr ., 2 AD3d 384 , 385). "Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the School defendants is warranted" ( Convey v City of Rye School Dist., 271 AD2d 154, 160; see Siegell v Herricks Union Free School Dist ., 7 AD3d 607 , 609).
Here, Defendants have made a prima facie showing of entitlement to summary judgment, establishing, as a matter of law, that they provided adequate supervision and, in any event, that any alleged inadequacy in the level of supervision was not a proximate cause of the incident ( see Ronan, 35 AD3d at 430; Siegell, 7 AD3d at 608-609). Defendants have submitted evidence that, among other things, the infant plaintiff's gym class, which consisted of approximately 20 to 25 children, was involved in appropriate free play activities under the supervision of a qualified substitute teacher, that plaintiff's accident appears to have been caused by a spontaneous and unforeseeable act committed by a fellow student, and that closer supervision could not have prevented it ( see Paragas v Comsewogue Union Free School Dist. , 65 AD3d 1111 ; Sangineto v Mamaroneck Union Free School Dist., 282 AD2d 596; see Siegell, 7 AD3d at 608; Wuest v Board of Educ. of Middle Country Cent. School Dist., 298 AD2d 578; Shabot v East Ramapo School Dist., 269 AD2d 587). Torres was injured when a fellow student, who was playing tennis, struck the tennis ball off the wall which then ricocheted at such an angle as to hit the plaintiff in the eye. Under these circumstances, it is clear that this act was sudden and unforseen and that no amount of supervision, however intense, would have succeeded in preventing this accident ( see Swan v Town of Brookhaven , 32 AD3d 1012 , 1013-1014, [2006]; see also Ronan, 35 AD3d at 430; see generally Mirand, 84 NY2d at 49-50).
Defendants have further demonstrated that they didnot have any prior notice of any similar conduct involving Ortiz to suggest that the incident was foreseeable ( see Tanon, 5 AD3d at 668), or that involving the students in multiple activities at the same time posed any kind of danger. Although groups of students were simultaneously involved in four different activities (tennis, basketball, handball, and jump rope) at the time of the incident, a review of the record reveals that each activity was being played in a separate part of the gym, and that none of the activities interfered with each other. The record further reveals that, prior to the incident, no one had sustained an injury from the "power" tennis activity, nor had either defendant otherwise been informed that such activity created a dangerous condition.
Plaintiffs' papers in opposition, even when viewed in the light most favorable to plaintiffs, fail to raise a triable issue of fact as to whether inadequate supervision was a proximate cause of the incident ( see Tanon, 5 AD3d at 668; Weinblatt v Eastchester Union Free School Dist., 303 AD2d 581). Indeed, plaintiffs have failed to submit any evidence that raises an issue of fact as to whether the "power" tennis game played by Ortiz and a fellow student was inherently dangerous or otherwise not an accepted activity played in the eighth grade gym class on the date in question. The fact that the infant plaintiff was standing in the vicinity of the tennis game for approximately 5 minutes before being struck in the eye is insufficient, standing alone, to raise a triable issue of fact as to whether Ortiz and the other student had been engaging in a prohibited activity "for an extended period of time" and whether "more intense supervision may have prevented the accident" ( Reardon v Carle Place Union Free School Dist ., 27 AD3d 635 ). In fact, during his deposition, Torres admitted that he was not sure how long the students had been playing the tennis game prior to his accident.
Additionally, the plaintiffs have failed to raise an issue of fact as to whether the Defendants had actual or constructive notice of prior similar conduct on the part of Ortiz to suggest that the incident was foreseeable ( see O'Neal v Archdioceses of NY, 286 AD2d 757; Moores v City of Newburgh School Dist., 237 AD2d 265). Torres himself testified that he did not know if Ortiz had intentionally caused the ball to hit his eye. Furthermore, a prior confrontation between Torres and Ortiz, which occurred seven months before the incident in question, is insufficient to place on BWC or Tempositions notice that Ortiz would intentionally cause the tennis ball to hit the infant plaintiff during free play in gym class ( see Calabrese v Baldwin Union Free School Dist., 294 AD2d 388; Kennedy v Seaford Union Free School Dist. No. 6, 250 AD2d 574). Accordingly, BWC and Tempositions are both entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
Conclusion
In sum, the City Defendants' motion for summary judgment dismissing plaintiffs' complaint and all cross-claims asserted against them is granted. That branch of BWC's motion seeking summary judgment dismissing plaintiffs' complaint and all cross-claims asserted against them is granted. Temposition's motion for summary judgment dismissing plaintiffs' complaint and all cross-claims asserted against them is also granted. That branch of BWC's motion which alternatively seeks indemnification from Tempositions, is moot, as the Court has dismissed the plaintiffs complaint in its entirety.
The foregoing constitutes the decision and order of the court.