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Slip Slidin’ Away – Student’s Fracture Occurred too Quickly for School to React (NY)

July 28, 2016

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In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/07/Elbadwi-v-Saugerties-Cent.-Sch.-Dist.pdf">Elbadwi v Saugerties Cent. Sch. Dist</a></em>, the Third Department recently discussed the standard of care that schools must exercise to prevent children from being injured by snow and ice.
Plaintiff, a 10-year-old student attending Cahill Elementary, she slipped and fell on any icy surface in December 2012 on the school’s playground during recess. On the day of plaintiff’s injury, the school’s lunch monitor expressly told all students, including plaintiff, that they had to remain in a specific area of the blacktop during recess. According to the lunch monitor, the students were told that they could not walk onto the actual playground, as its rubber surface was icy and all the equipment was covered with snow. Less than a minute after recess began, the plaintiff claimed that, in order to avoid colliding with another classmate, she jumped onto a slide on the playground, slipped, and fractured her upper left arm.
The infant plaintiff and her mother brought suit against the Cahill Elementary school district for 1) failing to maintain its property in a reasonably safe condition and 2), negligently supervising the infant plaintiff. After completing discovery, the defendant moved for summary judgment dismissing plaintiff’s complaint. The Supreme Court granted defendant’s motion as to the negligent supervision claim, but denied the portion of defendant’s motion seeking to dismiss the premises liability claim. According to the Supreme Court, there were questions of fact that precluded summary judgment regarding whether the defendant maintained the playground in a reasonably safe condition. The parties cross-appealed.
The Appellate Division, Third Department, held that the complaint should have been dismissed in its entirety. In terms of plaintiff’s negligent supervision claim, the Court noted that while schools have a duty to adequately supervise children in their care, they are not “insurers of their students’ safety.” Instead, schools are charged with the same degree of care that would be exercised by a reasonably prudent parent in similar circumstances, and when a child’s accident occurs in such a short period of time that “even the most intense supervision could not have prevented it, lack of supervision is not the proximate [cause] of the injury,” and summary judgment is warranted. In the case at bar, the defendant’s expert, an experienced school administrator, argued that the ratio of students-to-monitors was sufficient to provide proper supervision and that the lunch monitor provided reasonable supervision to the plaintiff on the day in question.
Even more important to the Court was the infant plaintiff’s own testimony. According to the infant plaintiff, as soon as the doors opened for recess, she and two friends ran toward the playground. When her friends turned to play kickball on the blacktop, she kept running toward the playground. Her friends called out her name, she turned, and when she “wasn’t paying attention” nearly collided with another classmate. To avoid the classmate, she swerved toward the playground equipment only to realize that she was about to trip over the slide. On instinct, she jumped up to avoid tripping, landed on the icy slide, slipped, and broke her arm. Because the plaintiff confirmed that “no amount of supervision” could have prevented her injury in such a short period, the Third Department affirmed the Supreme Court’s dismissal of plaintiff’s negligent supervision claim.
With regards to plaintiff’s premises liability claim, the Third Department reversed the Supreme Court.   According to the defendants’ expert, because the plaintiff was expressly instructed not to use the playground or playground equipment, the school had no duty to clear that area of snow.  Further, it would have been “nearly impossible” to remove all the snow the rubberized playground surface. In response, the plaintiff failed to provide their own expert or submit any evidence sufficient to raise a question of fact as to the defendant’s obligations to remove snow from the playground. Instead, the plaintiff only provided a bare assertion that the school was required to remove snow and ice from the playground. The Court concluded that, even if plaintiff submitted sufficient evidence to raise a question of fact, the plaintiff’s injury were likely the result of her own inattentiveness, not the condition of the slide.
Please note the importance of the appropriate experts in the defendants prevailing on both causes of action.  Without them, this case would have found itself before a potentially sympathetic jury.  Thanks to Evan King for his contribution to this post.  Please email <a href="mailto:bgibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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