School

Lack of Boundary or Lack of Claim (NY)

In New York, a plaintiff commenced an action against a School District for alleged personal injuries sustained by her child while he was engaged in a drill during school basketball practice. In Secky v. New Paltz Central School District, the New York Supreme Court denied defendant’s motion for summary judgment dismissing the complaint.

The plaintiff’s child in Secky was participating in a basketball drill that did not use the boundary lines of the court. Accordingly, players continued to play even when the ball when out of bounds. Following a missed shot, the child went to retrieve a ball that had left the court. As the child approached the ball, around 2-4 feet from the retracted bleachers, he eased up and reached for the ball. While this was happening, a teammate  bumped the child from behind face first into the bleachers.

In New York, a person who voluntarily participates in a sport or recreational activity assumes the risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. However, the Plaintiff argued that the inherent risks of participating in basketball were increased by the elimination of the boundary line during the drill.

On appeal, the Appellate Court concluded that the risks inherit in playing basketball were not increased by the removal of boundaries for the drill. The plaintiff provided an expert witness who claimed that the drill could have been safer by utilizing the boundary lines of the basketball court. The Appellate Court determined this assessment was insufficient to raise an issue of fact, especially because plaintiff’s expert had not proved that defendant violated a specific industry standard. As a result, the Appellate Court reversed the lower courts decision to deny the motion dismiss.

This matter confirms that a defendant should always ensure that they are following specific industry standards. Because the plaintiff in this case was unable to show that the school district had not violated industry standard, her case was dismissed.

Thanks to Cory Maiorana for his contribution to this post. Please contact Heather Aquino with any questions.

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Baseball Player Used Eye As Catcher’s Mitt, Assumed The Risk (NY)

In Grady v Chenango Valley Central School District, Plaintiff, then a high school senior and member of the Chenango Valley High School boys’ varsity baseball team, sustained permanent injuries to his right eye after being struck in the head by a baseball during a combined varsity and junior varsity outdoor baseball practice. Plaintiff commenced this action alleging that his injuries were caused by defendants’ negligence in, among other things, conducting multiple infield drills with multiple balls simultaneously in play without proper safety precautions and equipment. Defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion and dismissed the complaint, finding that plaintiff assumed the risk of injury. Plaintiff appeals.

The Appellate Division, Third Department upheld the lower court’s decision, holding that  risks which are commonly encountered or inherent in a sport, such as being struck by a ball or bat in baseball, are risks for which various participants are legally deemed to have accepted personal responsibility.”

Plaintiff testified that he has played baseball since he was a young child and had played on his school’s modified, junior varsity and varsity teams in previous years. Plaintiff voluntarily participated in baseball practices, including the multiple ball infield drill and the testimony makes clear that plaintiff appreciated the risk of getting hit by an errant throw.

Although plaintiff asserts that the presence of a screen between certain players may have provided a false sense of security that they would be protected, thereby creating a dangerous condition beyond the normal dangers inherent in the sport, this argument is belied by his testimony unequivocally establishing that he did not rely upon the screen for safety but, rather, thought that the drill was unsafe even in the presence of the screen.

The Court’s majority ruled the evidence showed that plaintiff was an experienced baseball player who “knew of the risks, appreciated their nature and voluntarily assumed them,” defendants demonstrated their prima facie entitlement to summary judgment under the primary assumption of risk doctrine.

In dissent, Justice Pritzker believed there was a question of fact as to whether the plaintiff could have assumed the risk when the safety screen, he deemed, was inadequate. The purpose of the screen was to make the drill reasonably safe; however, instead of choosing a screen because it was a particular size or shape, the screen they utilized was chosen out of convenience, as it was what was the largest one available. Notably, plaintiff’s expert opined that the screen was too small and was not positioned in a manner so as to protect plaintiff at first base. Accordingly, it is my opinion that this case is more properly analyzed using the standard employed in cases involving inadequate safety equipment.

Thanks to Paul Vitale for his contribution to this post.  Please email Georgia Coats with any questions.

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District of NJ Denies Insurer’s Attempt to Dismiss Claims for Sexual Abuse Coverage

In School Excess Liability Joint Ins. Fund v. Illinois Union Ins. Co., the United States District Court for the District of New Jersey recently considered whether the plaintiffs, School Excess Liability Joint Insurance Fund (“SEL”), Diploma Joint Insurance Fund (“Diploma”), and School Alliance Insurance Fund’s (“SAIF”) sufficiently pled that they have incurred losses that eroded their retained risk and triggered coverage under the excess insurance policies issued by the defendant, Illinois Union Insurance Company (“Illinois”). The plaintiffs sought defense expenses and liability costs for defending sexual abuse claims.

By way of brief background, the plaintiffs are joint insurance funds, i.e., public entities composed of “members” who pool resources to self-insure against losses for claims up to a specific amount, and purchase excess insurance from insurance companies to cover losses that exceed that amount. Defendant Illinois issued multiple excess insurance policies to the plaintiffs. Specifically, the excess policies provided Illinois will pay the “Ultimate Net Loss in excess of the Underlying Coverage that the Insured becomes legally obligated to pay as damages because of the injury or damage to which this insurance applies.”

In their complaint, the plaintiffs averred that the policies provide coverage for general liability, which encompasses sexual abuse claims, as the policies specifically identify limits of insurance for “sexual abuse” in the Schedule of Underlying Coverage. Therefore, plaintiffs claimed that Illinois breached its contractual duty and duty of good faith and fair dealing by failing to indemnify the plaintiffs for defense expenses and amounts paid for liability and defense expenses for sexual abuse claims.

Upon analyzing whether the plaintiffs asserted a valid breach of contract claim, the court the held that, since the plaintiffs are “self-insured”, i.e., without insurance, pursuant to N.J.S.A. 18A:18B-1 et seq., the plaintiffs have no Underlying Coverage as defined by the insurance policies. Therefore, the court reasoned that, by self-insuring, the plaintiffs bore the burden of paying defense expenses.

With respect to whether the sexual abuse claims were covered under the policies, the court compared the averments of the complaint with the policies and, treating the factual averments as true and construing the complaint in the light most favorable to the plaintiffs, held the plaintiffs sufficiently pled the sexual abuse claims were covered by the policies and the plaintiffs payments towards those claims eroded their retained risk and triggered Illinois’ indemnification obligation. In denying Illinois’ motion with respect to the breach of contract claim, the Court focused on the policies’ definition of sexual abuse, which the plaintiffs pleaded fell within the ambit of “General Liability”, and identification of aggregate limits for sexual abuse claims.

It is important to note that, upon rendering its decision, the court did not take a position as to whether the plaintiffs would ultimately succeed on the merits of their claims, as this determination could only take place after the completion of discovery.

Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions.

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Defendants Strike Out On Appeal For Summary Judgment On Alleged Baseball Field Negligence (NY)

In Morace v. Commack North Baseball Clubs Inc., the infant plaintiff was at baseball practice when his coach hit a ball to him.  As the infant plaintiff raced to catch the ball, he allegedly fell and sustained injuries after encountering a hole at the location of a sprinkler head. A lawsuit was filed against the Town of Smithtown and Commack Baseball. Both defendants moved for summary judgment; however, the lower court denied the motions. These appeals ensued.

The Appellate Division, Second Department upheld the lower court decision as they held both defendants failed to establish their prima facie entitlement to judgment as a matter of law on the ground that the plaintiffs were unable to identify the cause of the infant plaintiff’s accident nor as a matter of law on the ground that the infant plaintiff assumed the risk of his injuries.

The Town, which owned the ballpark, did not establish its prima facie entitlement that it lacked notice of the condition alleged. Moreover, Commack Baseball failed to demonstrate that Commack Baseball provided adequate supervision of the infant plaintiff on the date of the subject accident or that a lack of adequate supervision was not a proximate cause of the infant plaintiff’s injuries.

Thanks to Paul Vitale for his contribution to this post.  Please email Georgia Coats with any questions.

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Student Battles University Over Alleged Incomparable Education Experience & Unjust Enrichment During COVID-19 Pandemic (PA)

As the COVID-19 pandemic continues, we have already seen lawsuits filed by restaurant owners, gym members, cruise ship guests, and even students. Recently, Pennsylvania State University (“Penn State”) found itself embroiled in a lawsuit filed by one of its students in the Middle District of Pennsylvania. In Thomson v. Penn State, Tyler Thomson (“Plaintiff”) filed a class action lawsuit alleging that Penn State breached its contract by not reimbursing students for tuition and fees paid prior to the transition to online study. Plaintiff argues that he and other similarly situated class members have been deprived of an in-person educational experience and as a result, they should be refunded their pro rata share of tuition and other fees already paid for the Spring 2020 semester. He believes that Penn State has already demonstrated that an online educational system is incomparable to on-campus learning by charging a reduced rate to students who elect to pursue their degrees online. Plaintiff asserted two classes as part of this lawsuit. The Tuition Class consists of class members who paid Spring 2020 tuition but are unable to proceed with in-person, on-campus learning. The Fee Class consists of class members who paid fees for the Spring 2020 semester. Plaintiff is requesting injunctive and declaratory relief based on two grounds: (1) breach of contract and (2) unjust enrichment on behalf of both classes.

For the breach of contract claim, the Tuition Class members assert that they entered an agreement with Penn State, in which they paid tuition in exchange for on-campus learning. The class allegedly suffered injury due to the university’s breach of said agreement. Relatedly, they allege that Penn State was unjustly enriched by failing to provide the programs expected by the students who paid tuition. The university allegedly benefitted at the class members’ expense. Nearly identical theories were articulated for the Fee class members. The bottom line is that Plaintiff thinks Penn should be held responsible for the money it kept despite on-campus closure.

As COVID rages on, this issue presents itself to universities and students all over the world. Plaintiff acknowledges that Penn State had no other choice but to close due to the pandemic. However, this issue is not unique to the academic context. We are sure to see more breach of contract claims filed in the next few months and this will certainly change how agreements are structured. Until then, we will see a battle between entities who want to protect their clientele and staff from the dangers of an unknown illness versus consumers — even in the midst of a global crisis.

Thanks to Gabrielle Outlaw for this post.  Please contact Vincent Terrasi with any questions or comments.Read More

Plaintiff’s Summary Judgment Motion Gets Schooled by Department of Education (NY)

In E.W. v. City of New York, the plaintiff, a then-third grade student at P.S. 44, was injured while walking between classes when he stopped to converse with a friend. The plaintiff alleges that the door he was holding, while he was talking, automatically closed on its own. The door severed the tip of plaintiff’s index finger, which had become caught between the door and the doorjamb near the hinges.

As a result of the plaintiff’s injuries, the plaintiff and his mother commenced a personal injury action against defendants, the City of New York and the New York City Department of Education (“DOE”). After discovery was complete, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants’ motion and in response, the plaintiffs appealed.

The New York Appellate Division, Second Department found that the Supreme Court properly granted the branch of the defendants’ motion for summary judgment dismissing the cause of action alleging negligent supervision. In reaching this decision, the Court recognized that although schools have a duty to provide supervision to ensure the safety of those in their charge, schools will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision. The Court determined that when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury. Therefore, the Court found that the defendants established, prima facie, that any alleged inadequacy in the level of supervision was not a proximate cause of the accident.  As for the City, the Court also found that the City established its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing the accident occurred on public school premises, which the City did not operate, maintain, or control.

This decision serves as a reminder that while schools owe a duty to students to provide supervision, only those injuries that are both foreseeable and proximately related to the absence of adequate supervision will invoke liability.

Thank you to Caitlin Larke for her contribution to this post.  Please email Colleen E. Hayes with any questions.

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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.

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Keep Your Eye On The Ball: Soccer Player’s Concussion Dismissed Against Athletic Department (NY)

In Calderone v Molloy College, plaintiff was a student-athlete who played for Molloy College’s soccer team. During a matchup, plaintiff took a soccer ball strike to the head and he suffered a concussion. Plaintiff stayed in the game and claimed that his injuries were exacerbated by continuing to play and brought suit against the athletic department and the referees stating that they should have seen the symptoms of the concussion and removed him from the game. Defendants argued that summary judgement should be granted under primary assumption of risk doctrine, as the risks of a sporting activity are known by or perfectly obvious to a voluntary participant. Plaintiff alleged that the doctrine did not apply because the defendants acted recklessly or negligently in leaving the plaintiff in the game. The lower court granted defendants’ motions and the plaintiff appealed.

The Appellate Division Second Department upheld the lower court’s decision under the theory the “risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” The Court stated that there was no evidence that plaintiff had sustained a concussion or showed any signs of a concussion – as he remained in the game. Moreover, a soccer ball to the head causing a concussion is reasonable and calculable risk in playing soccer.

Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions.

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Plaintiff’s Hail Mary to Overturn Decision Is Denied (NY)

In Ninivaggi v. County of Nassau, the 14 year old plaintiff allegedly was injured when he and a friend were playing catch with a football on the premises of an elementary school owned by the defendant Merrick Union Free School District.  The injury occurred when the infant plaintiff stepped into a “depression” or “hole” on the grassy field, lost his balance, and fell.  The depth of the depression was variously described by the plaintiffs as being two-to-three inches, three-to-four inches, and five inches.

The plaintiff had previously played on the field, and admitted that he was familiar with the condition of the field. After discovery was complete, the district moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that the plaintiffs’ claims were barred by the doctrine of primary assumption of risk. The Supreme Court granted the district’s motion. The plaintiffs appeal.

The Appellate Division Second Department affirmed the decision pursuant to the doctrine of primary assumption of risk. The Court held the doctrine applies to inherent risks related to the construction of the playing field or surface and “encompasses risks involving less than optimal conditions”

Here, the district established its prima facie entitlement to judgment as a matter of law on the basis of primary assumption of the risk. The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field. Moreover, the infant plaintiff’s testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed. The Court found a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field

However, there was a lengthy dissent in this matter. Here, the dissent focused on the turf itself where the threshold question with respect to any premises liability cause of action is whether the owner or possessor of the land (or building) breached the duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. Because the plaintiff stated there were depressions in the field and the defendant knew or should have known of them, their motion should have been denied. The Court stated “[E]vidence was presented from which it could be concluded that the District failed to even attempt to properly maintain the field to ensure that it was not hazardous to the children and members of the community that were welcomed to play on it. What incentive does the District have to ensure that future plaintiffs are not similarly injured from its alleged failure to provide a safe ballfield upon which the children from Merrick can play.

Although the defendants won on both the state and appellate level, there is potential with this dissent that the Court of Appeals would take up this matter.

Thanks to Paul Vitale for his contribution to this post.  Please email Georgia Coats with any questions.

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Fraternity Off The Hook for Post-Party Murder (PA)

An Eastern District of Pennsylvania Court recently examined whether a fraternity could be held liable for the murder of a student that occurred after a fraternity party.

The facts in Hall v Millersville University are tragic. It was alleged that the decedent was in a tumultuous relationship with Greg Orrostieta. The decedent and Greg would often stay overnight together at Greg’s residence or in the decedent’s dorm room. The decedent was a student at Millersville but Greg was not. Ample testimony indicated that there was physical abuse in the relationship, and it was alleged that this physical abuse was known to the fraternity and Millersville.  More specifically, the night of the murder, the decedent and Greg went to a party at the fraternity. Multiple fraternity brothers saw a physical and verbal confrontation, which included Greg pushing the decedent against the wall. The fraternity brothers further testified that subsequent to this altercation, Greg and the decedent were dancing together. The fraternity brothers testified that, in context, “everything’s good” after the altercation, as the couple were dancing together again. Importantly, after the party, multiple fraternity brothers had a conversation with one of decedents’ friends, and that a confrontation was needed the next day with respect to Greg’s behavior.

In the main, the Court granted summary judgment for all defendants, holding that murder was an unforeseeable, extraordinary act, and that none of the defendants’ actions/omissions were the proximate cause of the decedent’s death. The Court concluded that the fact pattern simply wasn’t sufficiently severe to place the fraternity or Millersville on notice of a potential murder that night. More specifically, the Court concluded that the fraternity simply could not know that “among the partygoers would be an individual capable of murdering his girlfriend.”

This case serves as a reminder that summary judgment is still a useful tool in cases with extraordinarily sympathetic facts to the plaintiff.

Thanks to Matthew Care for his contribution to this post.  Please contact Georgia Coats with any questions.

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