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LACK OF SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF STUDENT’S FALL, PLAINTIFF WAS ENGAGING IN AGE-APPROPRIATE BEHAVIOR TAKING TURNS JUMPING OVER A KNEE-HIGH FENCE WHEN SHE FELL AND WAS INJURED, SCHOOL DISTRICT’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the school district’s motion for summary judgment in this school recess injury case was properly granted. Plaintiff, who was in eighth grade, was injured when her shin struck a knee-high fence as she attempted to jump over it, causing her to fall on a concrete walkway. She had been taking turns with her friends jumping the fence for 10 or 15 minutes:

The plaintiff testified at a General Municipal Law § 50-h hearing and her deposition that she did not see any school personnel outside the school building either before or at the time of the incident. …

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . However, “[s]chools are not insurers of safety, . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students” … . Here, the defendant established … that the plaintiff was engaged in an age-appropriate activity that did not constitute dangerous play, and that the alleged lack of supervision was not a proximate cause of the accident … . Chiauzzi v Sewanhaka Cent. High Sch. Dist., 2019 NY Slip Op 02310, Second Dept 3-27-19

 

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THE SECOND DEPT USED THIS OPINION AS A VEHICLE TO EXPLAIN THE COMPLEX PROOF... ALTHOUGH PLAINTIFFS APPEARED FOR THE 50-h HEARING, PLAINTIFFS’ ATTORNEY...