[*1] Melnik v Island Trees Mem. Middle School 2011 NY Slip Op 51047(U) Decided on June 13, 2011 Supreme Court, Nassau County Marber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Melnik v Island Trees Mem. Middle School
Decided on June 13, 2011
Supreme Court, Nassau County
Kimberly Brown Melnik, Individually and as Mother and Natural Guardian of NATHANIEL GESSNER, an Infant, Plaintiffs,
Island Trees Memorial Middle School, ISLAND TREES SCHOOL DISTRICT, TOWN OF OYSTER BAY, TOWN OF HEMPSTEAD, NASSAU COUNTY AND UNITED SKATES, INC., Defendants.
Counsel for Plaintiffs:
Robert K. Young & Associates
Joseph J. Scheno, Esq.
2284 Babylon Turnpike
Merrick, NY 11566
Counsel for the Defendant Island Trees Union Free School District s/h/a
Island Trees School District:
Ahmuty, Demers & McManus
Maureen Casey, Esq.
200 I.U. Willets Road
Albertson, NY 11507
Counsel for the Defendant United Skates, Inc.:
Cruser, Mitchell & Novitz Keith V. Tola, Esq.
175 Pinelawn Road
Melville, NY 11747
Randy Sue Marber, J.
The Defendant, Island Trees Union Free School District, s/h/a Island Trees School District (hereinafter "Island Trees"), moves pursuant to CPLR § 3212, seeking an order granting summary judgment dismissing the Plaintiffs' complaint, together with any and all cross-claims as are asserted herein (Mot. Seq. 04) and the Defendant, United Skates, Inc., (hereinafter "United Skates"), moves pursuant to CPLR § 3212, seeking an order granting summary judgment dismissing the Plaintiffs' complaint (Mot. Seq. 05). The Defendants' respective motions are determined as hereinafter provided.
On June 23, 2009, the infant Plaintiff, Nathaniel Gessner, was attending a school field trip at United Skates, a roller skating rink, located at 1276 Hicksville Road in Massapequa, New York (see Casey Affirmation in Support atExhibit E). The Plaintiff alleges that while he was skating, he was struck from behind by an unknown skater and caused to fall thereby sustaining injury to his left wrist (id. at Exhibit F at pp. 21-23; Exhibit G at pp. 76, 78, 79; see also Exhibit E). More specifically, the infant Plaintiff testified at his Examination Before Trial that "out of nowhere, someone from behind me bumped into me and made me lose my balance" which "made my body lose all of its balance and made me fall" (id. at Exhibit G at pp. 76, 78, 79).
As a result thereof, the underlying action was commenced by the Plaintiffs and contains a cause of action predicated upon the Defendants' negligence, as well as a claim for loss of society, the latter of which is specifically asserted by the Plaintiff, Kimberly Brown Melnik (id. at Exhibit A). As set forth in the Verified Bill of Particulars, the Plaintiffs allege that the Defendant, Island Trees, was negligent in the following ways: in failing to properly supervise the infant Plaintiff; in failing to provide the infant Plaintiff with skating instructions; in failing to train its employees in relation to the roller skating event; in failing to ascertain if the students were capable of engaging in roller skating, and in failing to warn the infant Plaintiff of the dangers attendant thereto (id. at Exhibit E). With respect to the Defendant, United Skates, the Plaintiffs claim that said Defendant was negligent in supervising the students, as well as by failing to provide skating instructions to the infant Plaintiff (see Tola Affirmation in Support at ¶ 4; see also Exhibit A).
The Court will initially address the application interposed by the Defendant, Island Trees (Mot. Seq. 04). In support thereof, counsel for the moving Defendant contends that the supervision provided by Island Trees was adequate under the circumstances and as such the school district did not breach any duty it owed to the infant Plaintiff (see Casey Affirmation in Supportat ¶¶ 44, 45, 46- 49). Counsel relies upon the deposition testimony of Mr. Anthony Messina, a substitute teacher with the school district, who testified, inter alia, that "[n]ine substitute teachers", as well as "[f]our lunch monitors, an assistant principal, a nurse, and three extra subs" were in attendance on the field trip (id. at Exhibit I at pp. 8, 19). Counsel asserts that notwithstanding the adequate supervision afforded to the infant Plaintiff and his classmates, given the sudden nature of the subject accident, no amount of supervision could have prevented same and thus any purported lack of supervision could not have been the proximate cause thereof (id. at ¶¶ 51, 53, 54). [*2]
Counsel for the moving Defendant further posits that there is an absence in the record of any evidence which indicates the employees of the school district either witnessed the Plaintiff having difficulty skating or observed the other students skating in an inappropriate manner, the existence of which may have warranted a higher level of supervision (id. at ¶¶ 44, 46, 49). In so arguing, counsel relies, in part, upon those portions of the infant Plaintiff's 50-h testimony, wherein he stated that he did not witness any of his fellow students either misbehaving or roughhousing while at United Skates (id. at ¶ 46; see also Exhibit G at p. 104).
In addition to the foregoing, counsel for Island Trees argues that as it was not the owner of the skating rink, it owed no duty to the Plaintiff and any liability for the happening of the subject accident resides with Co-Defendant, United Skates (id. at ¶¶ 5, 41, 62, 64). Finally, counsel contends that as the infant Plaintiff assumed the known and obvious risks inherent in skating, the school district cannot be held liable for the injuries he sustained as a result of engaging therein (id. at ¶ 42, 56, 57, 60).
In opposing the instant application, counsel for the Plaintiffs contends that the doctrine of assumption of the risk is inapplicable herein and accordingly does not function so as to bar the Plaintiffs' recovery (see Scheno Affirmation in Opposition at ¶¶ 7, 8). Specifically, counsel argues that the infant Plaintiff did not voluntarily confront the risks attendant to roller skating and rather he was expressly told by his teacher that he was required to participate in said activity (id. at ¶¶ 9, 10, 12, 13, 15, 16). Counsel provides an affidavit from the infant Plaintiff, wherein he expressly avers "I did not know that I had a choice not to participate" and that "my teacher(s) did not give me the option not to participate" (id. at Exhibit A at ¶¶ 4, 5). The Plaintiff additionally and unequivocally states that "my teacher(s) told me I was required to participate" (id. at Exhibit A at ¶ 6). Counsel asserts that the Plaintiff's affidavit raises triable questions of fact as to the applicability of the theory of inherent compulsion, the effect of which would neutralize the doctrinal principles underlying assumption of the risk and concomitantly warrant denial of the instant application (id. at ¶ 14).
Counsel additionally posits that as the infant Plaintiff had never been roller skating prior to the day of the field trip he was not in a position to fully appreciate the risks attendant thereto and could not have voluntarily assumed same (id. at ¶ 17, 19, 20, 21). Finally, counsel contends that the moving Defendants herein were negligent in failing to instruct the infant Plaintiff as to how to roller skate and in failing to appraise him of the dangers inherent in said activity (id. at ¶ 22, 24, 25, 26; see also Exhibit A at ¶ 7).
In Reply, counsel for Island Trees reiterates those arguments set forth herein above and adds that the infant Plaintiff's post-deposition affidavit is inadmissible as same contradicts the testimony as adduced at both his 50-h hearing, as well as his Examination Before Trial (see Casey Reply Affirmation at ¶¶ 5, 6). Counsel further posits that participation in the field trip was totally voluntary and provides the affidavit of Ms. Cathleen Potorski, who "[i]n June of 2009 * * * was the Vice Principal at the Island Trees Memorial Middle School"(id. at ¶ 6; see also Exhibit A at ¶ 1). Ms. Potorski avers that she "organized and arranged the fifth grade field trip to United Skates after final examinations" and that those "[s]tudents who wished to attend * * * were required to return a signed permission slip by their parent or guardian" (id. at ¶¶ 2, 5). She states those students "who did attend the field trip * * * were not required to roller skate" and that "there were a number of video games in the arcade area * * *, as well as a snack bar available for use by the students" (id. at ¶ 7). Ms. Potorski further states that "[s]tudents were not required to attend the field trip" and those "who did [*3]not wish to go * * * would simply be released from school to go home following their examinations" (id. at ¶¶ 4, 6). The affiant finally notes that while the infant Plaintiff "originally * * * did not wish to attend" the field trip, she was thereafter "contacted by Nates's mother asking if there was still time for her to sign the permission slip for Nate to attend" (id. at ¶ 9).
Counsel for Island Trees argues in Reply that the evidence as adduced herein, including the Portorski affidavit, does not in any respect support the contention that the infant Plaintiff was compelled to partake in either the field trip in general or roller skating in particular (id. at ¶¶ 6, 7, 8, 9). Finally, counsel argues that the school district is not imbued with a duty to provide rolling skating instructions to the students and rather any duty borne thereby is limited to that of providing adequate supervision to those students in it's charge (id. at ¶¶ 14, 16).
As a general proposition, "[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Nash v. Port Washington Union Free School Dist., 2011 WL 1442225 [2d Dept 2011] quoting Mirand v. City of New York, 84 NY2d 44  at 49; see also Armellino v. Thomase, 72 AD3d 849 [2d Dept. 2010]). However, "schools are not insurers of safety * * * for they cannot reasonably be expected to continuously supervise and control all movements and activities of students * * * [and] are not to be held liable for every thoughtless or careless act by which one pupil may injure another'" (Mirand v. City of New York, 84 NY2d 44 , supra quoting Lawes v. Board of Ed. of City of New York, 16 NY2d 302  at 306). Thus, while a school is required to "take energetic steps to intervene * * * if dangerous play comes to its notice while children are within its area of responsibility" (Lawes v. Board of Ed. of City of New York, 16 NY2d 302 , supra at 305), the personnel of a given school "cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily" (Mirand v. City of New York, 84 NY2d 44 , supra at 49).
The duty owed by a school "derives from the simple fact that, * * * in assuming physical custody and control over its students, [it] effectively takes the place of parents and guardians" (id. at 49). Thus, a teacher owes a duty to those students in his or her charge "to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances" (id. at 49 quoting Hoose v. Drumm, 281 NY2d 54  at 57-58; Nash v. Port Washington Union Free School Dist., 2011 WL 1442225 [2d Dept. 2011], supra).
Having carefully reviewed the record, the Court finds that the Defendant has established its prima facie showing of entitlement to judgment as a matter of law by demonstrating both that it provided adequate supervision and that the Plaintiff's accident was spontaneous in nature such that no amount of supervision could have prevented the occurrence thereof (Troiani v. White Plains City School District, 64 AD3d 701 [2d Dept. 2009]; Lowe v. Meacham Child Care & Learning Center, Inc., 74 AD3d 1029 [2d Dept. 2010]; Lucian v. Our Lady of Sorrows School, 79 AD3d 705 [2d Dept. 2010]; Gaspard v. Board of Education of City of New York, 47 AD3d 758 [2d Dept 2008]). Here, with particular respect to the suddenness of the event at issue, the infant Plaintiff clearly testified it was "out of nowhere" that someone from behind bumped into him thereby causing him to lose his balance and fall (id.). As to the degree of supervision, the above referenced deposition testimony of Mr. Messina clearly establishes that on the day of the field trip, there were "[n]ine substitute teachers","[f]our lunch monitors, an assistant principal, a nurse, and three extra subs" in attendance (id. ). [*4]
In opposition to the Defendant's prima facie showing, the Plaintiffs have failed to raise a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 ). As noted above, in opposing the within application, counsel for the Plaintiffs' contends that the doctrine of assumption of the risk is inapplicable herein and that the Plaintiff's affidavit raises triable questions of fact as to the application of the inherent compulsion doctrine thus requiring denial of the instant application.
The doctrine of assumption of the risk provides that an individual who voluntarily elects to participate in a recreational or sporting type of activity "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" (Morgan v. State of New York, 90 NY2d 471  at 484; Joseph v. New York Racing Association, Inc., 28 AD3d 105 [2d Dept. 2006]).The doctrine "requires not only knowledge of the injury causing defect but also appreciation of the resultant risk" (Maddox v. City of New York, 66 NY2d 270  at 278). The awareness of a risk ascribed to a particular individual "is not to be determined in a vacuum" but rather is "to be assessed against the background of the skill and experience of the particular plaintiff" (id.). An individual who participates in a sporting or recreational activity is deemed "to have consented to those injury causing events which are known, apparent, or reasonably foreseeable consequences of participation" (Castello v. County of Nassau, 223 AD2d 571 [2d Dept. 1996]; Convey v. City of Rye School District, 271 AD2d 154 [2d Dept. 2000]; Turcotte v. Fell, 68 NY2d 432 ).
"The theory of inherent compulsion provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior" (Benitez v. New York City Board of Education, 73 NY2d 650  at 658). The two elements which must exist in order to establish liability predicated upon inherent compulsion include the following: "a direction by a superior to do the act", and; "economic compulsion or other circumstance which equally impels" the actor to comply with the direction given (id. quoting Verduce v. Board of Higher Education, 9 AD2d 214 [1st Dept. 1959] [dissenting op], revd. based upon dissenting op 8 NY2d 928 ). However, when an individual voluntarily elects to partake in a particular activity, the inherent compulsion doctrine is inapplicable (Musante v. Oceanside Union Free School Dist., 63 AD3d 806 [2d Dept. 2009]).
In the matter sub judice, there is no competent evidence that the infant Plaintiff was in any respect compelled to either partake in the field trip or to engage in roller skating. Rather, at his Examination Before Trial, the Plaintiff testified that he wanted to go on the field trip and when asked whether he was required to attend same or if anyone told him he had to roller skate, he responded "no" (id.; Benitez v. New York City Board of Education, 73 NY2d 650 )[FN1].
Moreover, the Court notes while counsel contends that the infant Plaintiff was unaware of the dangers inherent in skating, a review of the record reveals the Plaintiff testified he was concerned about falling and as a result would hold onto the wall while inside the actual skating rink.[FN2].
Further, as noted above, the subject accident occurred when an unknown skater bumped into the Plaintiff from behind. It has been held that "collisions between skaters are a common [*5]occurrence" and an individual who elects to engage is said activity is deemed to have assumed the risks attendant thereto (Kleiner v. Commack Roller Rink, 201 AD2d 462 [2d Dept. 1994]).
Finally, the Court notes that the Plaintiff's above-cited affidavit sets forth feigned factual issues specifically crafted so as to eschew the consequences of his prior deposition testimony, wherein he acknowledged his voluntary attendance on the field trip and that he in fact wanted to partake therein (Stancil v. Supermarkets General, 16 AD3d 402 [2d Dept. 2005]; Marcelle v. New York City Tr. Auth., 289 AD2d 459 [2d Dept. 2001]). Accordingly, said affidavit is insufficient to raise a triable issue of fact (id.).
Therefore, based upon the foregoing, the application interposed by Defendant, Island Trees Union Free School District, s/h/a Island Trees School District, (Mot. Seq. 04) made pursuant to CPLR § 3212 and which seeks an order granting summary judgment dismissing the Plaintiffs' complaint, together with any and all cross-claims as are asserted herein, is hereby GRANTED.
The Court now addresses the application interposed by the Defendant, United Skates. In moving for summary judgment, counsel for the Defendant, United Skates similarly contends that the infant Plaintiff assumed the risks inherent in roller skating, thus warranting dismissal of the within action (see Tola Affirmation in Support at ¶¶ 39-47). Counsel additionally argues that the moving Ddefendant provided adequate supervision to the infant Plaintiff and due to the extremely compressed time span in which the Plaintiff's accident occurred, no amount of supervision could have prevented same (id. at ¶¶ 51, 52, 53, 55, 57).
The Court has reviewed the arguments and submissions proffered by the Defendant, United Skates and upon said review finds that the moving Defendant has established its prima facie showing of entitlement to judgment as a matter of law (Winter v. City of New York, 208 AD2d 827 [2d Dept. 1994]; Tassielli v. United Skates of America, 33 AD3d 908 [2d Dept. 2006]). As noted above, the Plaintiff states that he was caused to fall when "out of nowhere" he was struck from behind by an unidentified skater. "Where * * * a skater is struck by the sudden and abrupt action of an unknown skater whose action could not have been anticipated or avoided by the most intensive supervision, the skating rink bears no liability for failure to supervise" (Winter v. City of New York, 208 AD2d 827 [2d Dept. 1994], supra; see also Blashka v. South Shore Skating, Inc., 193 AD2d 772 [2d Dept. 1993]; Bua v. South Shore Skating, Inc., 193 AD2d 774 [2d Dept. 1993]).
In opposition to the Defendant, United Skate's within application, the arguments set forth by the Plaintiffs' counsel are identical in form and substance to those proffered in opposition to the application interposed by Co-Defendant, Island Trees.[FN3] For the reasons and rationale set forth herein above, said opposition is insufficient to raise a triable issue of fact.
Based upon the foregoing, the motion (Mot. Seq. 05) interposed by the Defendant, United Skates, Inc., which seeks an order granting summary judgment dismissing the Plaintiffs' complaint, is hereby GRANTED.
This constitutes the Decision and Order of the Court.
All applications not specifically addressed are Denied.
DATED:Mineola, New York
June 13, 2011 [*6]
Hon. Randy Sue Marber, J.S.C.
Footnote 1: see Casey Affirmation in Support at Exh. G at pp. 52,54, 90.
Footnote 2: id. at pp. 89-90.
Footnote 3: see Scheno Affirmation in Opposition dated February 28, 2011.