Johansen v 3'S A Party, Inc.
Annotate this CaseDecided on June 24, 2009
Supreme Court, Richmond County
Andrew Johansen, an infant by his Mother and Natural Guardian, Stephanie Johansen, and Stephanie Johansen, individually, Plaintiff(s),
against
3'S A Party, Inc. d/b/a Wishes Party Center, Defendant.
102969/06
Judith N. McMahon, J.
On September 16th, 2000, the infant plaintiff, Andrew Johansen, was allegedly injured during a children's birthday party at Wishes Party Center (hereinafter "Wishes"), located at 1828 Hylan Boulevard, Staten Island, New York. The infant plaintiff was accompanied to the party by his mother, plaintiff Stephanie Johansen. The accident allegedly occurred when the infant plaintiff was walking backwards and tripped on a super hopper toy in an open play area of Wishes Party Center. On or about May 24, 2006, plaintiffs commenced this negligence action against defendant for, inter alia, failing to adequately supervise the infant plaintiff during the party. Presently, defendant is moving for summary judgment on the ground that no evidence of negligence on defendant's part exists.
It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegard v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard "the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v. Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).
In order to make a claim for negligent supervision it is well settled that, "liability for negligent supervision does not lie absent a showing that it constitutes a proximate cause of the injury sustained" (Cerrato v. Carapella, 22 AD3d 701, 702 [2d Dept., 2005]; Mayer v. Mahopac Central School District, 29 AD3d 653, 654 [2d Dept., 2006]; Lopez v. Freeport Union Free School District, 288 AD3d 355, 355 [2d Dept., 2001]). "Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury" (Cerrato v. Carapella, 22 AD3d 701, 702 [2d Dept., 2005]; Reardon v. Carle Place Union Free School District, 27 AD3d 635, 636 [2d Dept., [*2]2006]; Lopez v. Freeport Union Free School District, 288 AD3d 355, 355 [2d Dept., 2001]).In support of the motion for summary judgment, defendant Wishes has submitted evidence in admissible form sufficient to establish that adequate supervision was provided to infant plaintiff during the children's birthday party (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Wishes has also submitted evidence that the alleged accident occurred in such a short time period that, even with greater supervision, the accident could not have been prevented (Cerrato v. Carapella, 22 AD3d 701, 702 [2d Dept., 2005][granting defendant Bowling Center's motion for summary judgment dismissing the negligence complaint where the alleged accident at a birthday party occurred so suddenly that it could not have been prevented by "more intense supervision"]; Reardon v. Carle Place Union Free School District, 27 AD3d 635, 636 [2d Dept., 2006]). In addition, defendant has established that any alleged negligent supervision was not a proximate cause of the accident (Mayer v. Mahopac Central School District, 29 AD3d 653, 654 [2d Dept., 2006][granting defendant's motion for summary judgment to dismiss the negligent supervision complaint where plaintiff was allegedly injured after tripping on a hockey stick, since the "alleged inadequate supervision was not the proximate cause" of the incident]).
In opposition, plaintiffs have failed to raise triable issues of fact that defendant Wishes' allegedly negligent supervision was the proximate cause of the infant plaintiff's injuries (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]; Cerrato v. Carapella, 22 AD3d 701, 702 [2d Dept., 2005]; Mayer v. Mahopac Central School District, 29 AD3d 653, 654 [2d Dept., 2006]; Lopez v. Freeport Union Free School District, 288 AD3d 355, 355 [2d Dept., 2001]). Plaintiffs have failed to show that there are issues of fact as to whether the sudden accident could have been prevented with further supervision (id). Here, infant plaintiff was injured in a play area of Wishes Party Center, where super hoppers were found. Infant's mother Stephanie Johansen testified that the super hoppers were visible in the basketball/play area of the Party Center and the infant plaintiff also observed other children playing with the super hoppers prior to the accident. As a result, the plaintiffs' claim that the lack of supervision in the play area at the time of the incident as the proximate cause of infant plaintiff's alleged injury is insufficient to raise triable issues of fact as to whether the alleged accident could have been prevented with greater supervision (Cerrato v. Carapella, 22 AD3d 701, 702 [2d Dept., 2005]; Mayer v. Mahopac Central School District, 29 AD3d 653, 654 [2d Dept., 2006]; Lopez v. Freeport Union Free School District, 288 AD3d 355, 355 [2d Dept., 2001]).
The court also notes that the toy over which the plaintiff fell was "open and obvious" and plaintiff assumed the risks inherent in the activity (Terranova v. Staten Is. Univ. Hosp., 57 AD3d 765, 766 [2d Dept., 2008]; Neiderbach v. 7-Eleven, Inc., 56 AD3d 632, 633 [2d Dept., 2008][holding that "[a] landowner is under no duty to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous"]). Here, both the infant plaintiff and the infant plaintiff's mother testified that they saw the super hoppers in the play area, prior to the accident, clearly establishing the alleged defect as open and obvious.
In opposition, plaintiff has failed to raise issues of fact that the super hopper toy was not open and obvious to infant plaintiff, in the play area of the Party Center (Terranova v. Staten Is. Univ. Hosp., 57 AD3d 765, 766 [2d Dept., 2008][dismissing plaintiff's complaint where the [*3]wheelchair that plaintiff tripped on was found to be an open and obvious condition in a hospital]; Neiderbach v. 7-Eleven, Inc., 56 AD3d 632, 633 [2d Dept., 2008][dismissing plaintiff's complaint where the crate that allegedly caused plaintiff's fall was "readily observable" and not inherently dangerous]; Giambruno v. Breslin Development Corp., 56 AD3d 520, 521 [2d Dept., 2008][dismissing plaintiff's complaint where the concrete wheel stop that plaintiff tripped on in the parking lot was "clearly visible" and not inherently dangerous"]).
Furthermore, "when an individual voluntarily participates in a sport or recreational activity, he or she consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Milea v. Our Lady of Miracles Roman Catholic Church, 290 AD2d 424, 424 [2d Dept., 2002]; DiGiose v. Bellmore-Merrick Central High School Dist., 50 AD3d 623, 623 [2d Dept., 2008]; Duffy v. Suffolk County High School Hockey League. Inc., 289 AD2d 368, 369 [2d Dept., 2001]). Plaintiffs has also failed to raise triable issues of fact that infant plaintiff did not assume the risk associated with participating in the activities at the children's party (Milea v. Our Lady of Miracles Roman Catholic Church, 290 AD2d 424, 424 [2d Dept., 2002]; Duffy v. Suffolk County High School Hockey League. Inc., 289 AD2d 368, 369 [2d Dept., 2001]; Baker v. Briarcliff School District, 205 AD2d 652, 655 [2d Dept., 1994]). As a result, summary judgment is appropriate.
Accordingly, it is
ORDERED that the defendant Wishes' motion for summary judgment is hereby granted and the complaint is dismissed in its entirety, and it is further
ORDERED that any and all other requests for relief are hereby denied, and it is further,
ORDERED that the Clerk enter judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.
Dated: June 24, 2009ENTER,
______________________________
Hon. Judith N. McMahon
Justice of the Supreme Court
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