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Second Department: Not All Playground Falls Amount to Foul Play (NY)

August 31, 2018

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The Second Department issued a favorable decision for the defense bar in a recent decision on the case <a href="">Boland v. North Bellmore Union Free School District</a>. In that case, the lower court granted the defendant’s summary judgment motion as to the negligent training and supervision claims and denied the motion as to the negligent maintenance claims. The Second Department affirmed the lower court’s decision insofar as it granted the defendant’s motion as to the negligent training and supervision claims and reversed the decision insofar as it allowed the negligent maintenance claims to survive. Given how common the circumstances underlying this case are to schools, parks, and camps, the court’s signal that it would not entertain this case could help to dissuade plaintiffs from burdening such institutions and clogging the courts with commonplace accidents.
In <a href="">Boland</a>, the infant-plaintiff alleged that she was injured when she fell from an “apparatus” in the defendant’s school playground during recess. The child’s mother, as her guardian, brought claims for both negligent training and supervision and negligent maintenance of the playground. The Court found that the defendant established its prima facie case as to the negligent training and supervision claim by submitting evidence which demonstrated that it provided adequate training, adequate supervision, and that the level of training and supervision was not a proximate cause of the incident.
As to the negligent maintenance claim, the Second Department concluded that the defendant stated its prima facie case by submitting evidence to demonstrate that the playground was adequately maintained and that it did not create an unsafe or defective condition. Unfortunately, the decision does not specify of what this evidence consisted. However, the Court went on to explain that the plaintiff’s expert failed to raise a genuine issue of material fact when the expert argued that the ground cover beneath the apparatus was inherently dangerous or defective. The expert argued that the ground cover did not meet standards set by the American Society of Testing Material and Consumer Product Safety Commission. However, the Second Department opined that these standards were guidelines and not mandatory and therefore reversed the lower court to dismiss the negligent maintenance claims as well.
The Second Department’s decision is beneficial to the defense bar, in that it discourages claims arising out of incidents, which undoubtedly occur daily: children falling off of playground equipment. While the opinion does not say so outright, based upon the court’s reasoning, it appears advisable for defendants in such cases to support their arguments with an affidavit from a qualified and experienced expert in the design, construction, and maintenance of playgrounds and playground equipment.
Thanks to Kristina Duffy for her contribution to this post. Please email <a href="">Vito A. Pinto </a>for more information.


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