Ossip v Village Bd. of Hastings-On-Hudson

[*1] Ossip v Village Bd. of Hastings-On-Hudson 2006 NY Slip Op 52005(U) [13 Misc 3d 1226(A)] Decided on October 19, 2006 Supreme Court, Westchester County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 23, 2006; it will not be published in the printed Official Reports.

Decided on October 19, 2006
Supreme Court, Westchester County

Kathleen Ossip, individually and as parent and legal guardian of Muriel Ossip, Plaintiffs,

against

The Village Board of Hastings-On-Hudson and The Board of Education of the Village of Hastings-On Hudson, Defendants.



8800/05



Law Office of Thomas K. Moore

Atty. For Deft. The Vill.

701 Westchester Avenue

White Plains, New York 10604

Barry, McTiernan & Moore

Attys. For Deft. Brd. Of Ed.

55 Church Street

White Plains, New York 10601

Goidel & Siegel, LLP

Attys. For Pltfs.

122 East 42nd Street

New York, New York 10168

Mary H. Smith, J.

This is an action to recover for personal injuries allegedly sustained by the infant plaintiff Muriel on August 8, 2004, when, while under her mother's supervision, she fell from a set of monkey rings in a playground operated and maintained by defendant Village of Hastings-On-Hudson ("Village") and which is situated on property owned by defendant Board of Education of the Village of Hastings-On-Hudson ("Board"). At the time of her fall, Muriel was one month short of her sixth birthday. [*2]

According to the testimony of Mrs. Ossip, Muriel's mother, she and Muriel had visited the playground approximately 50 times previous to the date of her accident and that her daughter previously had used the subject monkey rings without incident approximately 8 times before. On the accident date, Mrs. Ossip had been seated on a bench less than 10 feet away from the monkey ring apparatus, "constant[ly]" viewing her. She had observed her daughter successfully reach for the first monkey ring from the platform area where she had been standing, then successfully reach to the second ring. It was at the time that her daughter reached from the second ring to the third ring that she had lost her grip and fell to the sand below, sustaining injury.

Plaintiffs commenced this action, alleging in her Bill of Particulars that the defendants were negligent in failing to provide adequate supervision, that the climbing apparatus from which the infant fell was situated too high off of the ground, had rings that were too far apart to be safely used by a child of the infant's age and lacked appropriate safeguards to prevent injury, including minimally safe ground cover. Plaintiffs also allege that safety warning were and appropriate instructions were lacking.

Defendants both are separately moving for summary judgment dismissing the complaint and any cross-claims. Defendant Village argues that plaintiffs have failed to demonstrate a breach of any duty owed to them as would render said defendant liable. Defendant Village firstly argues that the record at bar demonstrates that at the time it had purchased the play equipment, Raymond Gomes, the Village's Superintendent's of Parks and Recreation, specifically had requested from the play equipment company that he be provided with equipment suitable for children 5 to 12 years of age. Further, defendant Village claims that it had maintained the playground in reasonably safe condition. Indeed, noting the United States Consumer Product Safety Commission's recommendation that 12 inches of sand be placed under the play equipment for school and community playgrounds, said defendant argues that Village Superintendent of Buildings and Grounds George Foster had testified that the day after Muriel's accident he went to the location with another employee and they dug a hole to determine the depth of the sand beneath the monkey rings; they determined that the sand was more than 12 inches deep and that it was at approximately 16 inches down that they had reached the gravel substrate.

Additionally, defendant Village argues that because the fall occurred as a result of the infant missing the third ring, it was not any defect in the equipment that had caused her to fall. Rather, they contend that Muriel's injuries were caused by the inherent dangers of engaging in play on the monkey rings and her fall was the normal and commonly appreciated risk of such an activity.

Defendant Board joins in the Village's arguments. It also [*3]claims that it did not owe any duty to plaintiffs, that it did not breach any duty and that it was simply not negligent in that it did not purchase the playground equipment, did not install the equipment, was not responsible for the maintenance and inspection of the equipment, and the infant was being supervised by her mother at the time. According to the Board, plaintiffs merely have made the allegation of negligence against the defendants without any proof that a dangerous condition actually existed at that time.

Moreover, defendant Board argues that because plaintiffs had failed to identify in their Notice of Claim their asserted claim of inadequate supervision, said claim must be dismissed.

Plaintiffs vigorously oppose both motions, arguing firstly that neither defendant has sustained its burden in prima facie demonstrating entitlement to judgment by showing that the apparatus "was safe when used by the infant plaintiff or that it was designed, installed and maintained in compliance with operative guidelines." According to plaintiffs, the Consumer Protection Safety Commission Guidelines, which the parties all agree are applicable, require that ground cover for a playground must be loose, resilient and shock absorbent.[FN1] Here, plaintiffs claim that defendants have failed to offer any proof that the compacted sand was adequately resilient or loose.

Further, plaintiffs argue that the apparatus in fact was unsafe since the ground surface beneath it was comprised of compacted, course sand which they contend "provide[d] virtually no shock absorption" and the rungs measure 79 inches from the ground below, which plaintiffs argue "far exceeds the maximum allowable height of four feet to five feet ..." Plaintiffs also claim that the rungs themselves were spaced too far apart and, finally, that defendants had failed to provide adequate warnings or use instructions for the monkey ring apparatus.

Also, plaintiffs argue that the CPSC Guidelines state that with respect to horizontal climbers, such as the monkey rings here in issue, an apparatus situated above compacted coarse sand should be no higher than four feet from the ground and that, for pre-school age children like Muriel, the maximum height of the climbing rings should be no more than five feet off the ground, with the space between the rings being no more than 12 inches. Plaintiffs argue that defendants not only have failed to establish the distance between the rings, but that the submitted deposition testimony of Mr. Gomes establishes a material departure from the Guidelines in that the rings were approximately 6.6 feet from the [*4]ground.

Finally, plaintiffs assert that an independent basis for liability against these defendants also exists based upon defendants' failures to have adequately inspected, loosened and turned the sand ground cover beneath the monkey rings to eliminate compaction of the sand.

In support of their negligence claim, plaintiffs have submitted an affidavit from William Marletta, a Board Certified safety consultant. Therein, Mr. Marletta states that he had reviewed the deposition testimony and the playground photographs, and that he had examined the subject monkey rings. He also reviewed the applicable CPSC Guidelines and the American Society of Testing and Materials guidelines. He states his opinion with a reasonable degree of certainty as a certified safety professional that the subject monkey rings for a five year old was unreasonably dangerous. According to Mr. Marletta, the rings measured a distance of 15 inches apart and the rings were approximately six and one-half feet off the ground, both of which far exceeded the acceptable ring spacing of 12 inches and the height requirement of the equipment being no more than five feet above ground. Additionally, Mr. Marletta claims that his inspection of the subject sand established it to be "densely compacted such that it provided virtually no adequate absorbency and shock resistence for falling object ..." Since defendants had chosen to use coarse sand as a ground cover, Mr. Marletta insists that it was incumbent upon them to further properly maintain the sand by replacing it, loosening it and cleaning it, which they had failed to do based upon his examination of the sand.

Initially, this Court agrees that plaintiffs' failure to have included a claim for lack of supervision in their Notice of Claim is fatal to the viability of said claim and same necessarily is hereby dismissed. See Chieffet v. New York City Transit Authority, 10 AD3d 526, 527 (1st Dept. 2004); Mahase v. Manhattan and Bronx Surface Transit Operating Authority, 3 AD3d 410, 411 (1st Dept. 2004).

In any event, it is clear that any such claim is entirely without merit on the facts presents since the infant's own mother was supervising her at the time of her injury. Given that Mrs. Ossip was not standing alongside of Muriel, spotting her, leads ineluctably to the conclusion that Muriel did not require any closer supervision and that any additional supervision by defendants could not have prevented Muriel's spontaneous misgripping of the monkey ring. See Swan v. Town of Brookhaven, _ AD3d _, 821 NYS2d 265 (2nd Dept. 2006).

Plaintiffs' protestations to the contrary notwithstanding, defendants have prima facie established their entitlement to judgment as a matter of law by presenting evidence that the playground had been maintained in a reasonably safe condition and [*5]that it and the monkey rings were free of defects and suitable for this five year old infant. See Swan v. Town of Brookhaven, supra , 821 NYS2d at 267; Banks v. Freeport Union Free School District, 302 AD2d 341 (2nd Dept. 2003); Lopez v. Freeport Union Free School Dist., 288 AD2d 355 (2nd Dept. 2001).

Moreover, the Second Department has determined that children who play on jungle gym type equipment have "consented to all of the risks which were inherent in and flowed from [their] playing on the equipment." Auwarter v. Malverne Union Free School District, 274 AD2d 528 (2nd Dept. 2000). Certainly Muriel's mother, who actually was supervising her daughter, would have appreciated the inherent safety risks posed by the monkey rings even if a five year old arguably could not.

It was thus incumbent upon plaintiffs to raise a triable issue of fact with respect to a dangerous condition existing and defendants' negligence. See DiSabato v. Soffes, 9 AD2d 297, 301 (1st Dept. 1959), app. dsmd. 11 AD2d 660 (1st Dept. 1960); see, also, Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD2d 136 (1st Dept. 1971), affd. 29 NY2d 617 (1971). This they have failed to do.

The Court agrees with defendant Village that plaintiff's expert inexplicably has applied to the facts of this action only the safety criteria set forth in the CPSC Guidelines applicable to playgrounds that are suitable for children 2 to 5 years of age; he has failed to address the standards provided by CPSC Guidelines for playgrounds suitable for 5 to 12 years old, which is the age appropriate play ground that the Village had purchased and where the sign welcoming children to play at the subject playground specifically states that the playground is designed for children 5 to 12 years of age. The Court notes that Muriel was five years old at the time of this accident, one month short of her sixth birthday and just several weeks short of the start of kindergarten. Plaintiffs have failed to explain why application of the standards for a playground suitable for pre-school children 2 to 5 years old, rather than the standards for a playground suitable for children 5 to 12 years old, applies and indeed this Court finds in the circumstances presenting that it should not.

The CPSC Guidelines clearly provide at page 21, Section 12.1.5 that 15 inches is the maximum ring distance for a playground suitable for 5 to 12 years old. Thus, no negligence is established with respect to the subject rings measuring 15 inches apart.

Also, CPSC Guidelines clearly provide at page 22, Section 12.1.5 that the maximum height of overhead rings for school age children 5 to 12 is 84 inches. The subject monkey rings measured 79 inches in height and thus do not establish that the monkey rings were dangerous.

Furthermore, while plaintiffs' expert states that the compacted coarse sand was insufficient ground cover given the height of the rings, he recites no authority for his claim. [*6]Defendant Village correctly notes that the Guidelines do not offer any minimum safety height where sand is packed, as here, 16 inches deep.[FN2] Indeed, even assuming that the sand was compacted, a characterization seemingly based solely upon plaintiffs' expert's claim without his offering any specifics regarding the density, this Court's perusal of the Guidelines does not reveal any prohibition in the CPSC Guideline with respect to the use of compact sand; rather, in Table 1 set forth on page 5 of the Guidelines, entitled "Critical Heights of Tested Materials," a listing for "Compressed Depth" of "Coarse Sand" is included. Moreover, Appendix C to the Guidelines, while noting "compacting" as a disadvantage of Organic Loose Material, such as wood chips, bark and mulch, does not state that compacting is a disadvantage of the use of Inorganic Loose Material, such as sand.

Since plaintiffs' expert solely has relied upon the CPSC Guidelines in determining that the subject monkey ring apparatus was unsafe, and this Court finds that proper application of the Guidelines do not support his conclusions, that plaintiffs have failed to raise any triable issue of fact as to the playground being unsafe or with respect to the defendants' negligence.This action is hereby dismissed.

Dated: October 19, 2006 Footnotes

Footnote 1:Plaintiff has submitted proof that the New York State Departments of Education, Health, Parks and Environmental Conservation have formally adopted the playground safety guidelines promulgated by the CPSC and the American Society of Testing Materials as guidelines by which playground design and safety should be judged.

Footnote 2:Since plaintiffs' expert states that he personally had examined the sand and he does not challenge defendants' claim that the sand was 16 inches deep, the Court finds that sand depth at the time of Muriel's fall was 16 inches deep.