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App. Div: School's are Not Insurers of Student's Safety During Recess

May 8, 2012

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In <em><a href="">Benavides v Uniondale Union Free School Dist</a></em>., the infant-plaintiff - a second-grade student - commenced an action against his school for inadequate supervision after he was pushed down a slide by a fellow student during recess. The school established its entitlement to summary judgment by showing the playground was adequately supervised and that the level of supervision was not a proximate cause of the subject accident. In affirming the decision, the Appellate Division stated schools cannot reasonably be expected to continuously supervise and control all movements and activities of its students and cannot be held liable for every thoughtless or careless act by which one pupil may injure another.

Notably, the Second Department considered the plaintiff's 50-h hearing testimony. Typically, trial courts have required a hearing to determine if an infant is swearable (understands the obligation to testify truthfully) before considering any testimony. Here, the plaintiff's attorney claimed that the testimony was inadmissible because of his client's age. However, the court refused to consider the plaintiff's argument stating it was improperly raised for the first time on appeal. Thus, as the swearability of an infant plaintiff does not present a pure question of law appearing on the face of the record, the Courts have the discretion to consider an infant's testimony at face value without such a hearing.

Thanks to Bill Kirrane for this post.  If you have any questions or comments about this post, please email Paul at


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