Touch Football Turns Into Trip Football And Leads To School Liability (NY)
In Deegan v. St Patricks Church at West Neck, plaintiff, who at the time of the accident was a fifth-grade student attending defendant’s school, was injured when he fell while playing touch football in the parking lot during recess. Plaintiff alleged that defendant negligently failed to supervise plaintiff and was negligent in maintaining the subject premises, allowing a dangerous condition to exist. The dangerous condition was the placement of Belgian blocks (similar to cobblestone) upon certain portions of that area, where students were permitted to play touch football
Defendant moved for summary judgment on the grounds that plaintiff was unable to identify the cause of his fall and that he assumed the risk of injury when he participated in the activity and he played touch football in the parking lot almost every day during recess that fall prior to the accident. Plaintiff argued that a 10-year old child cannot assume the risk of participating in a sport where the risks are unreasonably increased. The lower court denied defendant’s motion.
The Appellant Division Second Department upheld the lower Court’s decision stating “schools are under a duty to adequately supervise the students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” Further, the court held that “participants in sports or recreational activities, are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced.” The location of the concrete blocks in the area where the students would play was deemed a dangerous condition.
Here, defendant failed to make any showing as to whether it adequately supervised the students during recess and whether it was foreseeable that an injury would occur by permitting students to play touch football near the Belgium blocks. Moreover, a triable issue of fact remained as to whether allowing students to play touch football near the concrete blocks enhanced the danger and produced a foreseeable risk of injury.
Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions.