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NY App Div Rules Gym Teacher's Instruction Sufficient to Support Summary Judgment

December 31, 2009

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In Bramswig v. Pleasantville Middle School, a 12-year old plaintiff was injured when a classmate (and teammate) accidently struck him in the mouth with a hockey stick during a floor hockey game at Pleasantville Middle School in Westchester County. The plaintiff's first cause of action was based upon negligent instruction of the "high-sticking" rule by the gym teacher. (Presumably, there were other causes of action in this case in addition to negligent instruction, together with contributory negligence defenses, but none were addressed by the Court in this decision.)

The gym teacher was deposed, and testifed that he instructed the students at the beginning of that game, and in fact at the beginning of every gym class, that the practice of "high-sticking" was prohibited in floor hockey (not to mention a double minor in the NHL if injury ensues.) Further, he testified that he defined "high sticking" as lifting one's hockey stick above his or her waist during play.The defendants moved for summary judgment on the issue of negligent instruction, and plaintiff argued that there was a triable issue of fact as to the substance of the gym teacher's warning. Specifically, the plaintiff asserted that it was unclear whether the instruction of "high-sticking" involved raising one's stick above the knees or above one's waist.

The Appellate Division, Second Department found that the plaintiff's premised triable issue of fact was academic, in that regardless of the gym teacher's warning, the plaintiff was struck in the mouth by the high stick, and therefore either potential instruction was not heeded by the other student. Accordingly, the defendants' failure to instruct on the "high-sticking" rule was not a proximate cause of the plaintiff's injury, and defendants were granted summary judgment on this issue.

Thanks to Brian Gibbons for his contribution to this post.

<a href="http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09603.htm">http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09603.htm</a>

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