Listl v Tuckahoe Common School Dist.
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Listl v Tuckahoe Common School Dist. 2012 NY Slip Op 32366(U) September 13, 2012 Supreme Court, Suffolk County Docket Number: 07-23829 Judge: Ralph T. Gazzillo 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] INDEX NO. GAL. NO. 07-23829 11-01 16OOT SUPREME COURT - STATE OF NEVI YORK I.A.S. PART 6 - SUFFOLK CODT TY PRESENT: Hon. RALPH T. GAZZTLLO Acting Justice of the Supreme Court BRETT LISTL, an infant by his parents aiid natural guardians, LUANN LENO aiid MARTIN LISTL, and LUANN LENO and MARTIN LISTL, / MOTTON DATE 10- I 8- 11 MOTTON DATE 11-10-11 ADJ. DATE 12-1-1 1 Mot. Seq. # 003 - MD # 004 - Mot D O BRIEN & O BRIEN, LLP Attorney for Plaintiffs 168 Smithtown Boulevard Nesconset, New York 1 1767 P1ainti ffs, - against TUCKAHOE COMMON SCHOOL DTSTRTCT, CONGDON, FLAHERTY, O CALLA.GHAN, REID, DONLON, TRAVIS & FISHLlNGER Attorney For Defendant Tuckahoe Common S .D. 333 Earle Ovington Boulevard, Suite 502 Uniondalr:, New York I 1553 Defendant . Upon the followitig papers nuinbercd 1 to 34 1 ead on the morion and cross motion respectively for summary iudament and to dismiss the affirmative defenses; Notice of Motion/ Ordcr to Show Cause and supporting papers 1 - 15 ; Notice of Cross Motion and supporting papers 16 - 25; Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers 26 -27; 28 - 29; 30 - 34 ; Other - ( -; * ) it is, ORDERED that this motion by defendant Tuckahoe Common SchooI District for an order granting suininary judgment dismissing the complaint is denied; and it i s further ORDERED that plaintiffs cross motion for summary judgment dismissing defendant s affirmative defenses is granted to the extent set forth herein and is otheiwise denied. This is an action to recover damages for illjuries allegedly susta ned by the then 1 1 year old, Brett Listl on May 24,2006 at Tuckahoe Elementary School when a fellow sludent, Donovan Trent (Trent), pushed and tripped the iii ¬ant plaintiff, fracturing both his wrists. L u m i Leno and Martin Listl, the infant plaintiffs parents have interposed a derivative claim. By their cclrnplaint, plaintiffs assert causes of action against the defendant Tuckahoe Coininon School District (the District) sounding in negligent supervision, and negligent hiring. Plaintiffs allege that school monitors failed to manage, control ailti protect students in the playground area by permitting too many students to congregate and play on the playground and allowing students to become unruly. [* 2] IListl v Tuckahoe Coininon SD Index No. 07-23829 Page No. 2 The defendant District now moves for summary judgment dismissing the complaint on the basis that it provided sufficieiit monitors to supervise 120 students at recess, a ratio of one adult monitor for every 30 students. Defendant argues that there was no prior indication of any animosity between Trent and tlie infant plaintiff and that Trent was involved in only one prior incident involving physical contact. Thus, movant argues that it was not on notice that a greater level of supervision was required. Rather, defendant argues that plaintiffs injuries resulted from a sudden and spontaneous act of a fellow student, without warning or sufficient time for intervention. Defendant conte rids that plaintiff was a voluntary participant in horseplay. In support of the motion, defendant submits copies of the pleadings, the bill of particulars, and the deposition transcripts of infant plaintiff, plaintiff Luam Leno, teacher Arlette Sicari, and monitor Marianne Cherest. In opposition, plaintiffs contend that the District breached its duty to provide adequate supervision of its students by allowing horseplay to escalate into aggressive behavior, without intervention by school monitors. In addition, plaintiffs contend that Trent had a history of physical aggression and misconduct, and thus, the District was on notice that be posed a risk o ¬harm to other students. Plaintiffs contend that the incident consisted of a series of events tliat escalated, and had a school official intervened at an earlier stage, further harm would have been prevented. Plaintiffs oppose the motion and cross-niove for an order denying defendant s motion for summary judgment and dismissing defendant s first, second, fourth, fifth, sixth, and seventh affimiative defenses as legally insufficient. In support thereof, plaintiff submits inter alia, transcripts of the deposition testimony of infant plaintiff Listl, six grade teacher Arlette Sicari, monitor Marianne Cherest, Assistant Principal Robert Ricca, and the disciplinary record of Trent ]Donovan. The proponent of a summary judgment inotion must niake a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any inaterial issues of fact (Aharea v Prospect Hosp., 68 NY2d 320,508 NYS2d 923 [ 19861; Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1,487 NYS2d 3 16 C19851). Once this showing has been made, the burden shifts to the party opposing the motion for suinmary judgment to produce evidentiary proof in admissible forin sufficient to establish tlie existence of inaterial issues of fact which require a trial of the action (Zuckernzan v City qfMew Yovk, 49 NY2d 557,427 NYS2d 925 [I 9801). Schools 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 abseiice of adequate supervision (see Torres v City o New York, 90 AD3d 1029, 934 NYS2d 87112d Dept 201 11, Mirand v City afNew f York, 84 NU2d 44,614 NYS2d 372 [1994]; Roitan v School Dist. o City ofNew Rochelle, 35 AD3d f 429, 825 NYS2d 249 [2d Dept 20061). Even assuming there is a question of fact as to the adequacy of supervision, liability for any such negligent supervision does not lie absent a showing that it constitutes a proximate cause of the injury sustained (see Odekirk 17 BeIlmore-Mevrit:k CenfralSchool Di!+stricf, 70 hD3d 910,895 NYS2d 184 [2d Dept 20101, Majter vMwhopac Cent. SchoolDist., 29 AD3d 653,815 NYS2d 189 [2d Dept ZOOG]; Capofostov Roman Catlmlic Diocese of Rockville Ctr., 2 AD3d 384, 7G7 NYS2d 857 [2d Dcpt 20031; Lopez v Freeport Union Free Sclzool Disf.,288 AD2d 355,734 NYS2d 97 [2d Dept 200 13). Moreover, where an accident occurs in so short a span of time tliat even the 111ost intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the [* 3] List1 v Tuckahoe Coininon SD Index No. 07-23829 PageNo. 3 inju137 and summary judgment in favor of defendant school is warraixed (see Odekirk v Bellmore,Merrick CenfvalSchool District, supra, Ronan v School Dist. of Ci?yof New Rochelle, supra; Mayer v Mahopnc Cent. School Disf., supra; Reardon v Cnrle Place Union Free Sclzool Disf.,27 AD3d 635, 8 13 NYS2d 150 [2d Dept 20061. In order cstablish that a defendant school district has breached its duty to provide adequate supervision to a student vis-a-vis the acts of fellow students, it must be shown that the school had sufficiently specific knowledge or notice of tlie dangerous conduct which caused iqjury, that is, that the third party acts could reasonably have been anticipated (Jnnukajtis v Falloii, 284 AD2d 428, 726 NYS2d 45 1 [2d Dept 20011, quoting Mirand v City of New York, 84 NY2d 44, at 49,614 NUS2d 372 [2d Dept 19941). A school district s motion for summaiy dismissal in an action alleging inadequate supervision will be granted upon a demonstration that it did not breach its duty of supervision, either by failing to provide a sufficieiit number of monitors or to adequately supervise plaintiff (see Davidson v. Sachem Cent. School Disf.,300 AD2d 276,75 1 NYS2d 300 [2d Dept 20021, David v Couno of Suffolk, supra, Navarra v Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 AD2d 21 I, 733 NYS2d 730 [2d Depl20011, Berdecia v City ofNew York, 289 AD2d 354,355,735 NYS2d 5S4 [2d Dept 20011. Marianne Cherest testified that she was given a District handbook at the beginning oP each academic year. Although she was a monitor at three recesses on the playground at Tuckahoe Elementary School on the day o f the incident, she did not recall tlie circumstances or the total number of students at each recess. Her responsibilities included monitoring the children s activities and behaviors, keeping them safe, and assisting them if injured. She did not remember infant ;daintiff, but did recall that Donovan Trent was often in trouble for being loud, boisterous, and hard to control. She did not remember ever documenting an incident involving his behavior. She testified generally, describing,the recess area as including a soccer/baseball field/basketball area, and a p: ayground. She testified that there were thee monitors assigned to recess. One monitor would be stationed at the soccer field, another at the handballhaseball area, and the third on the playground. She testified that it was commonplace for children to trip one another, and the protocol was to direct them to stop, but they did not document the behavior. Arlctic Sacari testified that she had been employed as a teacher for the District for 16 years. She statcd that the principal reviews playground rules and regulations with monitors and teachers annually. Her classes averaged 23 students. Plaintiff was a student o f hers when the incident occurred. At one time, she was Trent s teacher on a part-time basis for math support She stated that students have recess at 1 1:30 a.m. for 20 minutes. She described the field as L shaped, and students walk through the soccer Geld to get to the playground. Monitors are stationed sporadically, and Mrs. Cherest supervised the soccer field on the day of the incident. Ms. Sicari witnessed the incident on the soccer field though a window in the faculty lounge, as she ate her lunch. She observed Trent lift plaintiff up and slam him down to the ground. She was not able to call out to or reach any of the monitors, as she tried to open the windows, but they would not budge. She saw the boys continue walking, the two students remained on the playground throughout recess. She was very upset over the incident and went directly to the assistant principal s office after lunch and filed a repoil: of the incident. She testified that 120 students were outside during recess at the time of the incident, and 4 or 5 monitors were supervising them. None o ¬the [* 4] Listi v Tuckahoe Coninion SD Index No. 07-23829 Page No. 4 monitors approached plaintiff or Trent. She had never witnessed prior incidents involving Trent and other students. Later that day, when she asked Trent why he behaved in that manner he conceded that they had been fooling around, but he did not realize that plaintiff was injured. Sacari spoke wit11 the monitor, who stated that although she was aware of the incident, she did not know anyone had been hurt. Infant plaintiff Brett List1 testified he was a sixth grade student when the incident occux-retl. He was walking towards the soccer field when I1e tripped a fellow student, Vincent Guli who had tripped liirn the day before. Another student Donovan Trent then tripped plzntiff. He immediately stood up and went to play soccer. Within a short period of time, Trent tripped him again. When plaintiff got up, he pulled Trent s hood over his face, and Trent tripped plaintiff again. F laintifftestified that after lie had bcen tripped three times, lie stayed on the ground for a minute or two Trent jumped on him pushing an eibow into each of his wrists, a wrestling move which Trent called the people s elbow . He felt pain in his right wrist. The entire incident took place over the course of seven minutes. Plaintiff did not observe any monitors in the area, and no one intervened or assisted him. He stood around waiting for reccss to end, but he did not report to the monitors that he was in pain. Upon his return to class, he told his teacher that his wrist was painful, and he was unable to write. After he was given ice at the nurse s office, he told the principal that Trent had tripped hiin and used a wrestling maneuver, ipjuring both of his wrists. The next day, a physician confirined that both wrists were broken. He stated that there were about three monitors on the playground the day of the incident. Plaintiff testified that tripping was coniiiion place at the school, and he had never been reprimanded for tripping. He had never reported that any students had tripped or threatened him, atid prior to the incident, he had never been in a fight with Trent. Plaintiff, Luann Leno, testified that prior to the incident her sori had never complained about problems at school. Her son s teacher, Mrs. Sicari, advised her, that she had watched the incident from the teachers luiiclwoom window for I O minutes, questioning why a monitor was not intervening. Mrs. Eeno testified that Assistant Principal Ricca admitted to her that he hac1 spoken to the monitor, and that a note had been placed in her permanent file for failing to intercede. Afler questioning her son further, he told her of other incidences of tripping. The assistant principal, Robert Ricca, testified that his responsibilities included supervision of staff and students, and the day-to-day operations of the Tuckahoe Elernmtary School. There were four monitors assigned during recess on the day of the incident, two on the field and two on the playground. Qne inonitor told him that she did not see anything. Another monitor admitted to him that she saw students roughhousing, that both students were part of a group that had been spoken to on several occasions, and that the group had been tripping students by placing a knee down behind then? and toppling them backwards. Thc disciplinaiy record of Donovan Trent reveals that he had been disciplined for fighting and wrest1ing , and disruptive and disrespectful behaviors. Here, plaintiffs raise material issues of fact as to whether the injuries sustained by the infant plaintiff were foreseeable based on the acluiowledgxnent by the District s personnel, specifically the assistant principal and the recess monitor, of prior incidences of tripping and roughhousing on the [* 5] List1 v Tuckahoe Common SD Index No. 07-23829 PageNo. 5 playground and on Trent Donovan s disciplinary record (see Torres 11 Ct of New York, supra, Mirand iy t City o New York, supra). A further issue exists as to whether tlie altercation between the students was , f so sudden that even the most intense supervision could not have prevented it Odekirk v BellmoreMerrick Celztral School District, 70 AD3d 9 10, 895 NY S2d 184 [2d Uept 20 101. Moreover, a material issue o f fact exists as to whether inadequate supervision was the proximate cause of plaintiff s injuries in view o f the testimony of a monitor and teacher who admittedly failed to intervene during the altercation (see Odekirk v BeIImore-Merrick Central School District, Ronan v ScI ckooIDist. of Ct of New iy Rochelle, supvn) Accordingly, defeiidant s motion (003) for an order granting summary judgment in its favor is denied. Turning to the cross motion, plaintiffs seek an order pursuant 1.0 CPLR 321 1 (b) dismissing the defendant s affirmative defenses. Plaintiff has withdrawn that branch of the motion which sought dismissal o f the first and second affirrnat,ive defenses. To tlie extent that the cross motion seeks dismissal of the third, fourth and fifth affirmative defenses, which allege contributory negligence, assumption of the risk on the part of the infant plaintiff and a sudden, unforseeii and spontaneous action on the part of a third prty, such defenses are to be determined at trial and accordingly, the branches o f the cross motion vdiich seek dismissal thereof are denied. Defendant s sixth affirmative defense is premised upon CPLR tj§ 41 1l(f), 4213(b), 4545(c), 5036, 504 1, 5046 and 5501 (c). To tlie extent that there is no provision in the CPLR eiiumerated 4 1 11 ( f ) or 4545 (c), the cross motion is granted. In addition, insofar as the sixth affirmative defense refkrs to CPLR 84 423 1 (b), 5036,5041, 5046 and 5501 (c), various provisions for post trial and post judgment procedure, it is dismissed without prejudice. Defendant s seventh affirmative defense is dismissed as superfluous. Even if the court were to deteriniiie that ajoint tort feasor were inzplicated herein, CPLR 1600 need not be plead as an affirmative defense (see Mwsula IJ Weinmub, 208 AD2d 689,617 NYS2d 809 [2cl Dept 19941). In view oE tlie foregoing, the cross motion is granted to the limited extent that the first and second affirmative defenses are permitted to be withdrawn and the sixth and seventh affirmative defenses are dismissed without prejudice. Dated: FINAL DISPOSITION X NON-FI -
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