Weinclaw v East Rockaway Sch. Dist.
Annotate this Case
Download PDF
Weinclaw v East Rockaway Sch. Dist. 2012 NY Slip Op 32058(U) July 19, 2012 Supreme Court, Nassau County Docket Number: 008249/10 Judge: James P. McCormack Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ---------------------------------------------------------------- [* 1] La SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: McCORMACK, Acting Supreme Court Justice HON. JAMES P. JILLIAN WEINCLAW , AN INFANT UNDER THE AGE OF 18 YEARS OLD BY HER MOTHER AND NATURAL GUARDIAN JACQUELINE KNELL Plaintiff TRIAL/lAS , PART 43 NASSAU COUNTY INDEX NO. : 008249/10 MOTION SUBMISSION DATE: 5/11/12 -againstMOTION SEQUENCE EAST ROCKAWAY SCHOOL DISTRICT AND INC. VILLAGE OF EAST ROCKAWAY NO. Defendants. The following papers read on this motion: Notice of Motion , Affirmation , and Exhibits Affirmation in Opposition and Exhibit Reply Affirmation Defendant, East Rockaway School District , moves pursuant to CPLR 3212 , for an order granting summary judgment in favor of defendant and dismissing plaintiff' complaint, alleging that the District is not responsible for the injuries because the condition was open and obvious and not inherently dangerous; the proximate cause of the plaintiff' s injury was her decision to jump over the bar; there is no evidence that a hazardous or dangerous condition existed and that the district had notice of it; and that the district was not negligent in its supervision. During lunch time recess on September 22 , 2009 , third- grade student plaintiff Jillian Weinclaw , is alleged to have sustained serious physical injuries when she fell [* 2] while jumping over a broken bench on the playground at the Rhame Avenue Elementary School (" School" ), which is located within the defendant East Rockaway School District (" District" Prior to the commencement of the suit the plaintiff' s served a timely notice of claim upon the District which was sworn on September 25 2009. On April 28, 2010 plaintiffs commenced the instant action against the District. The issued was joined when the District filed an answer on June 1 , 2010. Having completed discovery, plaintiffs filed their note of issue and certificate of readiness on November 16, 2011 and November 18 , 2011. In a motion for summary judgment the moving party bears the burden of making prima facie showing that he is entitled to summary judgment as a matter of law, by submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Silman v. Twentieth Century Fox Film Corp. Animals, Inc. v. Associates Fur Mfrs. York 49 NY2d 557 (1980); Alvarez V. 46 NY2d 1065 (1979); 3 NY2D 395 (1957); Friends of Zuckerman v. City of New Prospect Hospital 68 NY2d 320 (1986)). The failure to make such a showing requires denial of the motion , regardless of the sufficiency of the opposing papers Center, 64 NY2d 851 (1985)). (see Winegard v. New York University Medical Once this showing has been made, however , the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman 49 NY2d 557 (1980)). The primary purpose of a summary judgment motion is issue finding not issue [* 3] determination C. Garcia v. J. Duggan , Inc. 180 AD2d 579 (1 sl Dept. 1992), and it (see Andre v. Pomeroy, should only be granted when there are no triable issues of fact 35 NY2d 361 (1974)). Within the context of a summary judgment motion that seeks dismissal of a personal injury action the court must give the plaintiff the benefit of every favorable (see Anderson v. Bee inference which can reasonably be drawn from the evidence Line NY 2d 169 (1956)). A landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances , including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk" 2010); Basso v Miler, # 1, (Giulini v. Union free School Dist. 70 AD 3d 632 (2d Dept. 40 NY2d 233, 241 (1976)). In order to recover damages for injuries caused by the failure of a landowner to maintain its property in a reasonably safe condition , a plaintiff must establish that the landowner created or had actual or constructive notice of any hazardous condition which caused the injury claimed by that party (see Giulini v. Union free School Dist. v Long Is. R.R., 1 AD3d 472 (2003); 29 AD3d 900 (2d Dept. 2006); Castelltto v Atlantic # 1, 70 AD3d 632 (2d Dept. 2010); DeGruccio v Pac. Co. 863 Wiliams Jericho Turnpike Corp. 244 AD2d 379 , 380 (2d Dept. 1997)). In order to establish constructive notice , a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the owner or its employees to discover and remedy it History, 67 NY2d 836, 837 (1986)). (see Gordon v American Museum of Natural [* 4] Where evidence exists that a dangerous condition is present on the property, the burden is on the landowner to demonstrate that he or she exercised reasonable care under the circumstances to remedy the condition and to make the property safe, based on such factors as the likelihood of injury to those entering the property and the burden of avoiding the risk. Evidence that the dangerous condition was open and obvious cannot relieve the landowner of this burden. The fact that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiffs comparative negligence (see Cupo v. Karfunkel 1 AD3d 48 (2d Dept. 2003)). The law recognizes that " a landowner or lessee has a duty to exercise reasonable care in order to maintain its property in a safe condition. " (Barth v. City New York , 307 AD. 2d 943 (2d Dept 2003)). However , an exception to the landowner duty arises when an occurrence is " so exceptional in nature that it does not suggest itself to a reasonably prudent person as one which should be guarded against' (Elardo v. Town of Oyster Bay, 176 AD. Fells v. Old 2d 912 (2d Dept 1991) quoting Oaks Country Club 163 A D. 2d 509 (2d Dept. 1999), quoting Silver v. Sheraton- Smithtown Inn 121 AD. 2d 711 (2d Dept. 1986)). In this particular case , the District owed a duty to keep the playground in a reasonably safe condition. This duty included " consideration of the known propensities of children to climb about and play AD3d 641 (2d Dept. 2010); (Lynch v. Sports Leisure Entertainment RPG, 71 Cappel v Board of Educ. , Union Free School Dist. No. Northport 40 AD2d 848 , 848 (2d Dept. 1972); see also Collentine v City of New York, [* 5] 279 NY 119 , 125 (1938)). Here, triable issues of fact exist as to whether the District , in allowing the broken bench to remain in the playground, knowing the children frequently made a game of jumping it , discharged this duty. The infant plaintiff testified regarding the apparent frequency with which many of the second , third , fourth and fifth grade students were jumping this exposed pipe , without an authority figure telling them to stop or closing off the hazard to prevent them from gaining access. This creates the impression that this is not the type of activity " so exceptional in nature that it does not suggest itself to a (see Elardo v. reasonably prudent person as one which should be guarded against" Club 163 Fells v. Old Oaks Country 176 A.D. 2d 912 (2d Dept 1991) quoting Town of Oyster Bay, A.D. 2d 509 (2d Dept. 1999), quoting Silverv. Sheraton- Smithtown Inn , 121 AD. 2d 711 (2d Dept. 1986)). Here, the defendant District failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law on the issues of notice and creation of the alleged defect and, thus , on the issue of whether it maintained the subject playground in reasonably safe condition 1125, 1126- 1127 (3d Dept. 2009); Dept. 2008); (see Gray v South Colonie Cent. School Dist. 64 AD3d Padden v County of Suffolk 52 AD3d 663 , 664 (2d Banks v Freeport Union Free School Dist. 302 AD2d 341 (2d Dept. 2003); see generally Alvarez v Prospect Hosp. 68 NY2d 320 , 324 (1986)). Schools have a duty to adequately supervise children in their charge , and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see Gonzales v Munchkinland 89 AD3d 987 (2d Dept. 2011); Luciano v [* 6] Our Lady of Sorrows School 79 AD3d 705 (2d Dept. 2010)). " 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 the proximate cause of the injury and summary judgment in favor of the. 271 AD2d 154 School Dist., . . defendants is warranted" , 160 (2d Dept. 2000); (Convey v City of Rye see 730 Luciano v Our Lady of Sorrows School 79 AD3d 705 (2d Dept. 2010)). While schools are not insurers of their students ' safety since they cannot reasonably be expected to continuously supervise and control all of their movements Mirand v City of New York 84 NY2d 44 , 49 (1994); and activities (see Christopher Robin Academy, Hernandez v 276 AD2d 592 (2d Dept. 2000)), they have a duty to provide supervision to ensure the safety of those students in their charge , and are liable for foreseeable injuries proximately caused by the absence of adequate supervision (Kandkhorov v Pinkhasov 302 AD2d 432 , 433 (2d Dept. 2003); Capotosto v Roman Catholic Diocese of Rockvile Ctr. 2 AD3d 384 (2d Dept. 2003)). Here , the District failed to establish, as a matter of law , that the infant plaintiff was adequately supervised at the time of the accident or that the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision (see Luciano v Our Lady of Sorrows School 79 AD3d 705 (2d Dept. 2010); Convey v City of Rye School Dist. 271 AD2d 154 , 160 (2d Dept. 2000)). According to the testimony of the third grade plaintiff, she contends that she was injured when she attempted to jump over the exposed metal bar attached to the chairs at the playground and that a chair had been missing, and the bar exposed, since she [* 7] was in the second grade. She recalled that she and her friends used to play on the playground and jump or walk over the exposed metal bar. The child stated that she was never told by a lunch monitor that the bench was dangerous or that she should not play on or near it. In fact , she had seen many other kids in the second , third , fourth and fifth grades jumping the bar during recess and she had never heard of anyone being told not to do such things. She also testified that there were at least four lunch monitors present on the playground each day. The District, designated Jorge Salazar as their witness with knowledge of the facts surrounding this accident. Mr. Salazar has been employed by the District for eight years as a maintenance worker. He identified the gap between the chairs with the exposed metal pipe and recognized the particular place on the playground where this bank of chairs is located. He knew the chair was missing and the pipe was exposed but he did not know how long it was in that condition. Mr. Salazar was not present at the time of the accident , nor was he responsible for monitoring the children on the playground. The defendant failed to make a prima facie as a matter of law by establishing that it provided adequate supervision Lynbrook Pub. Schools , Lynbrook Union Free School Dist., showing of entitlement to judgment (see Navarra v 289 AD2d 211 (2d Dept. 2001)), and that the level of supervision was not a proximate cause of the infant plaintiffs accident (see Davidson v Sachem Cent. School Dist. 300 AD2d 276 (2d Dept. 2002); Lopez v Freeport Union Free School Dist. 288 AD2d 355, 356 (2d Dept. 2001); Ascher v Scarsdale School Dist. 267 AD2d 339 (2d Dept.1999)). As such , a triable [* 8] issue of fact as to the adequacy of the supervision , whether inadequate supervision was a proximate cause of the infant plaintiffs injuries and whether closer supervision (see Douglas v. John Hus Moravian Church of would have prevented the accident Brooklyn , Inc. 8 AD3d 321 (2d Dept. 2004)) The testimony suggests that the defendants should have been aware that the children engaged in this behavior of jumping this broken bench on the playground for approximately a year. Here the broken bench may be considered some type of attractive nuisance, factors which must be considered in analyzing whether the District maintained its property in a safe condition for hundreds of children to play every day and whether they properly monitored the children to prevent them from jumping over this obstacle that was not part of the regulation playground equipment. Defendant argues the proximate cause of the third grade plaintiff' s injury was her decision to jump over the bar. This argument amounts to a comparative negligence argument and such a contention is always an issue of fact for the jury. The issue of whether the infant plaintiffs own conduct, in failing to avoid an open and obvious defect , is a matter for jury resolution (Adsmond v. City of Poughkeepsie 283 A.D. 598 599 (2d Dept 2001).) Inasmuch as defendant failed to establish its prima facie entitlement to judgment as a matter of law , it is unnecessary to consider whether plaintiffs opposition papers were sufficient to raise a triable issue of fact Ins. Co. 71 A.D. 3d 971(2d Dept 2010); 2008)). (see Pfeiffer v. New York Cent. Mut. Fire McKenzie v Redl 47 AD 3d 775 (2d Dept. [* 9] Here the defendant has failed to demonstrate that the condition complained of was open and obvious and not inherently dangerous and that there was adequate supervision , as such triable issues of fact remain. Accordingly, defendant's motion for summary judgment is DENIED. This constitutes the Decision and Order of the Court. Dated: July 19 , 2011 JA ENTERED JUL 27 2012 "At)aAU COUNTY COUNTY CLERK" OffICE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
