PLAINTIFF’S SON SUFFERED A BROKEN JAW IN A COLLISION WITH ANOTHER STUDENT DURING A GYM-CLASS TOUCH FOOTBALL GAME; THERE WERE QUESTIONS OF FACT WHETHER SUCH A COLLISION WAS FORESEEABLE AND WHETHER INADEQUATE SUPERVISION WAS THE PROXIMATE CAUSE (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined the school’s motion for summary judgment in this negligent supervision action shiould not have been granted. Plaintiff’s son, a high school freshman, suffered a broken jaw during a touch football game during gym class when a taller student collided with him. The students were to call their own penalties and, according to plaintiff’s son, there were four games going on at once:
The testimony of the physical education teacher raised an issue of fact with respect to notice inasmuch as it established that, on the day before the collision, there was a “very similar” incident involving a collision between two boys during a touch football game in physical education class, resulting in injury. Nonetheless, the students in his game were, according to the testimony of plaintiff’s son, expected to call their own penalties. In addition, although the substitute teacher who was supervising the class that day testified that the class was divided into three separate games and that he was able to supervise them all simultaneously, plaintiff’s son further testified that the class was divided into four games, and the substitute teacher acknowledged that he did not see the collision that caused the injury to plaintiff’s son.
… Plaintiff’s son testified that he believed the collision was intentional because he “was nowhere near the ball handler” at the time he was hit from behind and “the only way” that the other student, who was six inches taller, could have hit plaintiff’s son’s jaw was if he had lowered his shoulder. Thus, considering that testimony together with the testimony that the students were expected to call their own penalties, we conclude that there exists a question of fact whether this was a “foreseeable consequence of the situation created by the school’s negligence” … . Ismahan A. v Williamsville Bd. of Educ., 2021 NY Slip Op 07396, Fourth Dept 12-23-21