Leung v City of New York

[*1] Leung v City of New York 2006 NY Slip Op 51738(U) [13 Misc 3d 1208(A)] Decided on September 15, 2006 Supreme Court, Richmond County Mega, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 15, 2006
Supreme Court, Richmond County

Alison Leung, an infant over the age of fourteen by her mother and natural guardian Gayle Leung and Gayle Leung, Individually, Plaintiff(s),

against

The City of New York, the Board of Education of the City of New York, Tottenville High School and Curtis High School, Defendant(s).



13155/02

Christopher J. Mega, J.

Upon the foregoing papers, the motion by defendant Board of Education and the City of New York for dismissal of the complaint as against each (1) is granted with respect to the City and (2) otherwise is denied.

On May 23, 2002, plaintiff Alison Leung, a 14-year old student at Tottenville High School, suffered severe personal injuries when she was struck in the face by a lacrosse ball while practicing with the track team on the track that encircles its multi-use sports field. The field in question was going to be used that afternoon for a lacrosse game. As a result of the injury, the infant is alleged to have suffered multiple facial fractures, requiring reconstructive surgery and plate fixations.

In support of the motion to dismiss, the City asserts, and this Court agrees, that pursuant to Education Law §2554 (4) and New York City Charter chapter 20, §521 (a), the care, custody, and control of all school property at the time of plaintiff's injury was the responsibility of the New York City Board of Education (hereafter "Board") rather than the City (see Goldes v. City of New York, 19 AD3d 448). Since the incident occurred during an after-school practice, on high school property during an activity conducted under the auspices of the high school, it is clear that the City is not a proper defendant.

However, the Board's attempt to avoid liability by asserting that the student had assumed the risk of injury by participating in track practice is equally without merit. The doctrine of assumption of risk provides that "by engaging in a sport or recreational activity, a participant 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" (see Sanchez v. City of New York, 25AD3d 776, quoting Morgan v. State of New York, 90 NY2d 471 [internal quotation marks [*2]omitted]). Since there is no dispute that plaintiff was practicing with the track team rather than playing lacrosse when she was struck in the face, her injury should not be viewed as arising out of an inherent danger associated with or incident to her chosen sport. Accordingly, the Board's reliance on the defense of assumption of risk is clearly misplaced (see Vogel v. Venetz, 278 AD2d 489; accord Hawkes v. Catatonk Golf Club, 288 AD2d 528).

Likewise, the Board's assertion that being struck in the face by a lacrosse ball was an open and obvious risk "attributable to the state of the track" is without merit. This is not a situation analogous to that in which, e.g., a basketball player trips on a depression or crack in the paved surface of a basketball court (see Paone v. County of Suffolk, 251 AD2d 563 accord; Gamble v. Town of Hempstead 281 AD2d 391), or a baseball player slips on a wet or muddy field (see Maddox v. City of New York, 66 NY2d 270). In fact, even assuming that plaintiff was aware of a prior incident in which a non-player was struck by a lacrosse ball (see Movant's Exhibit D, p 18), it is a question of fact for a jury to determine whether the aforesaid risk was fully comprehended by or perfectly obvious to the child (see Morgan v. State of New York, 90 NY2d 471, 488-489; see also Beroutsos v. Six Flags Theme Park, 185 Misc 2d 557 [S Ct NYCo 2000]).

Finally, the Board has failed to establish as a matter of law that it may not be held liable for plaintiff's injury. While schools are not the insurers of the safety of their students, they are under a duty to exercise the same degree of care as would a reasonably prudent parent placed in comparable circumstances (see Mirand v. City of New York, 84 NY2d 44, 49). Whether the adequacy of supervision provided by the school was commensurate with that duty, and whether a breach of that duty was a proximate cause of the plaintiff's injury are generally questions of fact for the jury (see Oakes v. Massena Cent School Dist,19 AD3d 981, 982; Lindaman v. Vestal Cent School Dist, 12 AD3d 916, 917).

Here, there is a clear conflict between the testimony of the infant, who stated that she was aware of a prior similar incident, and the lacrosse coach, who stated that he was not. (see Movant's Exhibit E, p 45). Additionally, while the Board's reply affirmation purports to rely on the deposition testimony of Alan Blanc, the athletic director at Tottenville High School at the time in question, to demonstrate that there was no violation of any school policy or rule on the day that plaintiff was injured, his testimony, when viewed in the light most favorable to plaintiffs merely establishes a question of fact as to whether or not the coaches were on notice of the danger involved in having the lacrosse team on the field at the same time that the track team was practicing (see Plaintiffs' Exhibit B, p 55). In fact, the City's witness testified that he would not have allowed both teams to utilize the same field at the same time ( id. at 82).

Accordingly, it is hereby

ORDERED that so much of the motion for summary judgment as seeks the dismissal of the complaint and all cross claims as against the City of New York is granted, and said causes of action are severed and dismissed; and it is further

ORDERED that the balance of the motion is denied; and it is further

ORDERED that the Clerk shall mark his records and enter judgment accordingly.

ENTER,

DATE: September 15, 2006/s/ Christopher J. Mega

J.S.C. [*3]