Islam v City of New York

[*1] Islam v City of New York 2007 NY Slip Op 51224(U) [16 Misc 3d 1102(A)] Decided on June 18, 2007 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2007
Supreme Court, Kings County

Mohammad S. Islam, a Minor by His Parents and Natural Guardians, Mohammad O. Islam and Ayeshar Akther, and Mohammad O. Islam and Ayeshar Akther, Individually, Plaintiffs,

against

City of New York, Board of Education of the City of New York, United Skates of America, Inc., d/b/a Empire Roller Skating Center and Empire Roller Skating Center, Defendants.



49928/02



Plaintiffs were represented by Michael W. Gunzburg, Esq. Defendants United Skates of American Inc. d/b/a Empire Roller Skating Center and Empire Rolling Skating Center were represented by Beth S. Gereg, Esq. Defendants the City of New York and the Board of Education of the City of New York were represented by Tzipora E. Teichman, Esq. of the Corporation Counsel of the City of New York.

Jack M. Battaglia, J.

On May 30, 2002, the infant plaintiff, Mohammad S. Islam, a ten-year-old fourth grader, was allegedly injured when he fell at a roller skating rink operated by defendants United Skates of America and Empire Roller Skating Center (collectively, "Empire") during a "field trip" organized by defendants City of New York and Board of Education (collectively, the "City.") Before the Court are motions by Empire and the City for summary judgment dismissing the Verified Complaint filed on behalf of the infant plaintiff by his parents, also plaintiffs, and by Plaintiffs for "partial summary judgment on the issue of liability" (see Notice of Cross Motion.)

The Verified Complaint alleges separate causes of action for negligence against the City and Empire, on behalf of the infant plaintiff, and a derivative claim for loss of services on behalf of his parents. For the most part, the same allegations of negligent act or omission appear for all Defendants; specifically, that they were:

"negligent, careless and reckless in failing to properly, and adequately supervise the 10 year old minor plaintiff; in permitting plaintiff to skate for the very first time in his life without any safety equipment including standard issue wrist guards; in failing to provide plaintiff with the proper instructions and lessons in the use of roller skates; in failing to explain and warn plaintiff's parents of the risks associated with roller skating, including fractures to the extremities, prior to [*2]obtaining their permission for their son to attend such risky endeavors; in failing to hire, retain, train and employ teachers, agents, servants and employees who are sufficiently competent and experienced in supervising its pupils, including minor plaintiff herein; in waiting 3 hours before rendering any medical care to the minor plaintiff; and in otherwise being careless and negligent at the time and place of incident." (Verified Complaint, ¶ 13.)

An additional allegation appears as to Empire, that it "fail[ed] to supervise and remove reckless skaters from the rink prior to causing any harm to neophyte skaters." (Verified Complaint, ¶ 22.)

The Court notes, in the first instance, that neither Empire nor the City makes any showing that it is entitled to judgment as a matter of law on the alleged failure to provide safety equipment and "in waiting 3 hours before rendering any medical care," and any possible liability on these grounds would not be avoided by contentions as to assumption of risk or lack of proximate cause, which are the primary focus of the Defendants' respective motions. As to these grounds, therefore, the motions would be denied in any event.

The infant plaintiff testified at an examination before trial that he fell after being "bumped" "very heavy" by a skater who had been skating "like a crazy man" "with high force" and "in a very high speed." (Examination Before Trial of Mohammad S. Islam, Exhibit C to Affirmation in Support of Motion, at 42-43.) The infant was not able to specify the period of time he observed the other skater before he was "bumped," other than that he saw him "two or three times" (id.) for "a few minutes," which could have been more or less than five minutes

(id., at 64.)

The infant plaintiff came to this country from Bangladesh in 2000. The day of the accident was the first time he had been on roller skates (id., at 13, 18); he had "no idea" what roller skating was, had never been to a roller skating rink, and did not know what a roller skating rink was (id., at 20-21.) While waiting with his teacher, Waleed Cope, to enter the Empire facility, he told the teacher that he had never skated before. (Id., at 25.) Mr. Cope did not offer him roller skating lessons. (Id., at 26-27.)

Although Empire and the City assert similar positions in their respective motions, in that they rely primarily on the doctrines of assumption of risk and proximate cause, each had a different kind of relationship with the infant plaintiff. Specifically, the "standard of care usually borne by school districts is not applicable" to the owner of a skating rink. (See Blashka v South Shore Skating, Inc., 193 AD2d 772, 773 [2d Dept 1993].)

"As the owner of [a roller] skating rink, [Empire] had a duty to exercise care to make the rink as safe as it appeared to be." (See Nunez v Recreation Room and Settlement, Inc., 229 AD2d 359, 360 [1st Dept 1996].) The owner "has a duty to control the reckless conduct of skaters on its premises where it is aware of the conduct, where the risk posed by the conduct was either unassumed, concealed or unreasonably increased' and where the risk could have been mitigated [*3]or prevented through adequate supervision." (Id. [quoting Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 (1989)].) The owner owes no special duty to the first-time skater. (See id., at 359-60.) There is no "duty to instruct beginners in skating, an activity that is not inherently dangerous." (See Blashka v South Shore Skating, Inc., 193 AD2d at 773.) "[A] sudden fall caused by a lack of agility is a risk which is a natural concomitant of the activity and thus to be assumed." (Sabey v Hudson Valley Girl Scout Council, Inc., 16 AD2d 525, 526 [3d Dept 1962].) "[E]ven a novice skater" assumes the risk of falling presented by "an open and obvious condition" at the rink. (See Clements v Skate 9H Realty, Inc., 277 AD2d 614, 615 [3d Dept 2000]; see also Cardoza v Village of Freeport, 205 AD2d 571, 571 [2d Dept 1994].)

"Collisions between skaters . . . are a common occurrence and a risk which all skaters assume." (Zambrana v City of New York, 262 AD2d 87, 87 [1st Dept 1999], aff'd 94 NY2d 887 [2000]; see also Bleyer v Recreational Management Service Corp., 289 AD2d 519, 520 [2d Dept 2001] ["an inherent risk"]; Conrad v United Skates of America, Inc., 251 AD2d 281, 281 [2d Dept 1998] ["sudden collision"]; Kleiner v Commack Roller Rink, 201 AD2d 462, 462 [2d Dept 1994] ["abrupt and sudden collision"].) "Assumption of risk, however, is not to be determined in a vacuum." (Guzman v Iceland, 18 AD3d 704, 705 [2d Dept 2005].) "Rather, it is to be assessed against the background of the skill and experience of the particular plaintiff." (Id.)

"Under the circumstances of this case, it may not be determined as a matter of law that the infant plaintiff was aware of, appreciated, and voluntarily assumed the risks' inherent in [roller] skating." (See Guzman v Iceland, 18 AD3d at 705 [quoting Taylor v Massapequa Int'l Little League, 261 AD2d 396, 398 (2d Dept 1999)] [age not specified]; see also Nunez v Recreation Room and Settlement, Inc., 229 AD2d at 360 [nine year old skater].) The transcript of the infant plaintiff's examination before trial is submitted by Empire in support of its motion, together with the transcript of the examination before trial of his teacher(see Examination Before Trial of Waleed Cope, Exhibit D to Affirmation in Support of Motion.) Neither establishes prima facie that the infant plaintiff assumed the common risks of roller skating.

Indeed, the teacher testified that the infant plaintiff spoke and read "very little English" (id., at 18), and, although the teacher testified that he gave safety warnings to his students (id., at 24, 43, 45), he confirmed that he gave them no lesson or other instruction on skating (id., at 32-33.) In light of the infant plaintiff's age, background and experience, and without any instruction that would have filled the gaps in his knowledge and understanding, it is clear that assumption of risk is not established on this motion. (See Park v YMCA of Greater New York Flushing, 17 AD3d 333, 333 [2d Dept 2005] [skiing / age not specified]; Bennett v City of New York, 303 AD2d 614, 615 [2d Dept [2003] [track and field /13 year old].)

The Court is aware that the infant plaintiff's father apparently signed a document that authorized the school to take his son to the Empire facility, and that the terms of such a document could be highly material to an assessment for purposes of an assumption of risk defense. For reasons that escape the Court, none of the parties submits a copy of the document on these motions, although, from the deposition transcripts, a copy is obviously available. The Court [*4]cannot assume that the document would assist any of the parties, and, indeed, will take adverse inferences against all of them. (See 1A New York Pattern Jury Instructions, Civil, 1:77 [2007].)

Empire's failure to make a prima facie showing on assumption of risk does not, however, resolve its motion. Empire might still succeed by establishing prima facie that it did not breach any duty of care owed to the infant plaintiff, or that any such breach was not the proximate cause of the infant plaintiff's injury. Empire makes no attempt on its initial submission to show that it did not breach any duty owed to the infant plaintiff, except for its insufficient showing on assumption of risk. (It does not even provide the Court with the deposition testimony of its own witness.) Empire's request in its reply papers that the Court "take judicial notice of the industry standard for the proper ratio of skaters to floor guards as promulgated by the RSA- -Roller Skating Association, of which [it] is a member" (Affirmation in Opposition to Plaintiffs' Cross-Motion and as a Reply in Further Support of Motion of United Skates, ¶ 17), must be rejected because that matter is offered for the first time in reply (see Alto v Firebaugh Realty Corp., N.V., 33 AD3d 738, 739 [2d Dept 2006]), and is not, in any event, appropriate for judicial notice.

The deposition transcripts offered by Empire are insufficient to establish prima facie that it provided adequate supervision of the school skating party involving more than one hundred fourth graders. The infant plaintiff testified that he did not see "any employees of the skating rink in the skating rink facility at any time on the day of May 30, 2002," and did not see anyone before the accident speak to the skater who "bumped" him. (Examination Before Trial of Mohammad S. Islam, Exhibit C to Affirmation in Support of Motion, at 48-50.) Mr. Cope, the teacher, testified that at least three Empire employees were on the premises, but he could not say how many were working as "ring guards" or were "on the floor" at the time of the accident. (Examination Before Trial of Waleed Cope, Exhibit D to Affirmation in Support of Motion at 73, 75, 90-91.) At another point, however, he said that there were "always floor guards present at the rings." (Id., at 132.)

Mr. Cope also testified that he did not recall seeing anyone skating in an "unsafe" manner, or disobeying his safety instructions. (Id., at 91, 132.) He did not recall seeing any of the "ring guards" or "floor guards" speaking to any skater or taking any disciplinary action (id., at 91, 132), nor did he recall taking any disciplinary action himself (id., at 132-33.) Mr. Cope did observe Empire employees showing students how to skate. (Id., at 91-92.)

Even if Empire has not established that it provided adequate supervision of the school skating party, "[t]he vital question is whether the . . . lack of supervision . . . is causally connected with the accident." (See Baker v Eastman Kodak Corp., 34 AD2d 886, 886 [4th Dept 1970], aff'd 28 NY2d 636 [1971].) Causal connection is absent when the accident results from the "sudden and abrupt action" of another skater that "could not have been anticipated or avoided by the most intense supervision." (See id.; see also Tassielli v United Skates of America, 33 AD3d 908, 908 [2d Dept 2006]; Suidi v Roco Realty Co., 272 AD2d 393, 393 [2d Dept 2000];

Bua v South Shore Skating, Inc., 193 AD2d 774, 774 [2d Dept 1993].) But the owner of the skating facility will not be entitled to judgment as a matter of law if there are "outstanding factual [*5]issues as to the nature and duration of . . . unruly behavior" in the rink and the owner's "actual or constructive knowledge thereof." (See Nunez v Recreation Room and Settlement, Inc., 229 AD2d at 360; see also Lopez v Skate Key, Inc., 174 AD2d 534, 535 [1st Dept 1991] ["sufficient period of time to put defendant on notice"].)

Empire offers no evidence by any of its employees that would show prima facie that it did not have actual or constructive knowledge of the person skating "like a crazy person" for a sufficient period of time to have prevented his collision with the infant plaintiff. "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004] [quoting Larkin Trucking Co. v Lisbon Tire Mart, 185 AD 614, 615 (4th Dept 1992)]; see also Pappalardo v Long Island R.R. Co., 36 AD3d 878, 880 [2d Dept 2007].) The rule is fully applicable to issues of actual and constructive notice. (See Ramos v Mac Laundry Hemp, Inc., 22 AD3d 822, 822 [2d Dept 2005].)

The only evidence on these motions as to the "nature and duration of [the] unruly behavior" comes from the infant plaintiff, and he could not say for how long he observed the "unruly" skater. That evidence is insufficient to establish prima facie that the collision resulted from "sudden and abrupt action" that "could not have been anticipated or avoided" by appropriate supervision. (See Baker v Eastman Kodak Co., 34 AD2d at 886.)

Finally as to Empire, it provides a document that its attorney describes as "the contract" between Empire and the City with respect to the May 30, 2002 skating party, but the document is not authenticated or otherwise rendered admissible in evidence. In any event, Empire makes no showing that the City/Empire contract in any way limited Empire's duty to the infant plaintiff or its liability for resulting injury.

To the extent that the City's motion is based upon assumption of risk (see Rivera v Bd. of Educ. of City of Yonkers, 19 AD3d 394, 395 [2d Dept 2005]; Douglas v John Hus Moravian Church of Brooklyn, 8 AD3d 327, 329 [2d Dept 2004]; Cardozo v Village of Freeport, 205 AD2d at 571), it is disposed of by what has already been said as to Empire's motion. Indeed, as to the City, the absence of the "permission slip" (see Affirmation in Support of Cross-Motion and in Further Support of Co-Defendant's Motion for Summary Judgment, ¶ 23) is even more glaring.

The Second Department has recently summarized a school district's duty to its students and related concepts of proximate cause:

" 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 absence of adequate supervision' . . . To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficiently specific knowledge or notice of the dangerous conduct and that the alleged breach was the proximate cause of the injuries sustained' . . Moreover, "when an accident occurs in so short a span of time that even the most [*6]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 [defendant school district] is warranted. " (Ronan v School District of the City of New Rochelle, 35 AD3d 429, 430 [2d Dept 2006] [quoting Mirand v City of New York, 84 NY2d 44, 49 (1944); Nocilla v Middle Country Cent. Sch. Dist., 302 AD2d 573, 573 (2d Dept 2003); Convey v City of Rye Sch. Dist., 271 AD2d 154, 160 (2d Dept 2000)].)

The articulated standard of care is that exercised by "a parent of ordinary prudence . . . in comparable circumstances." (Mirand v City of New York, 84 NY2d at 49 [quoting Hoose v Drumm, 281 NY 54, 57-58 (1939)].) But "New York courts have not hesitated to grant summary judgment to school districts in cases where the district makes a prima facie showing of lack of notice and / or proximate cause and plaintiff fails to come forward with factual evidence to the contrary." (Smith v Half Hollow Hills Cent. Sch. Dist., 349 F Supp 2d 521, 525 [EDNY 2004].) Although "the question of notice and the proper standard of care are two different questions" (Weston v City of New York, 282 AD2d 525, 527 [2d Dept 2001]), most of the decisions turn on "lack of notice and / or proximate cause," without distinct application of the standard of care.

The parental standard of care applies during supervised curricular athletic activities (see Opalek v West Islip Union Free Sch. Dist., 1 AD3d 491, 491-92 [2d Dept 2003]; Snyder v Morristown Cent. Sch. Dist. No. 1, 167 AD2d 678, 679 [3d Dept 1990]), and applies generally whenever and wherever the student is within the "physical custody or orbit of authority" of the school (see Chainani v Bd. of Educ. of City of New York, 87 NY2d 370, 378 [1995]; see also Bell v Bd. of Educ. of City of New York, 90 NY2d 944 [1997].)

The Court notes some doubt as to whether the parental standard of care should apply to an off-site skating party, rather than the duty of reasonable care applied to voluntary extracurricular sports activities (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 654 [1989].) The Court also notes, however, that the parental standard of care was recently applied by the Second Department to a "hay ride on a school field trip" (see David v City of New York, 2007 NY Slip Op 3873 [2d Dept, May 1, 2007]), and that the City argues its motion on the basis of that standard (see Affirmation in Support of Cross-Motion and in Further Support of Co-Defendant's Motion for Summary Judgment, ¶ 12.)

There has been explicit recognition that ordinary prudence will require more from the school acting in the place of the parents of younger students. (See Garcia v City of New York, 222 AD2d 192, 195-96 [1st Dept 1996].) "This duty includes the obligation to assign students to supervised athletic activities that are within their abilities . . . and age-appropriate." (Lindaman v Vestal Cent. Sch. Dist., 12 AD3d 916, 916-17 [3d Dept 2004]; see also Snyder v Morristown Cent. Sch. Dist. No. 1, 167 AD2d at 679.) It also includes providing appropriate instruction. (See Merson v Syosset Cent. Sch. Dist., 286 AD2d 668, 669 [2d Dept 2001]; Kraszewski v Mohawk Cent. Sch. Dist., 227 AD2d 923, 923 [4th Dept 2000]; Darrow v West Genessee Cent. Sch. Dist., 41 AD2d 897, 898 [4th Dept 1973].) [*7]

There is no contention that the infant plaintiff was not able physically to roller skate; the issue is his level of experience with skating. There is no dispute that he was not given any instruction in skating by his teacher or any one else on behalf of the school, even though, according to the infant plaintiff's undisputed testimony, he told the teacher that he had never skated before. The teacher testified, moreover, that whenever he saw the infant plaintiff at the rink, which may have been no more than twice, the infant was standing still, perhaps a sign of well-founded insecurity. It can hardly be said, under these circumstances, that, as a matter of law, the teacher made a reasonable assessment of the infant plaintiff's abilities, and filled any gap with appropriate instruction.

The City's duty of adequate supervision includes "providing a sufficient number of supervisors" (see David v City of New York, 2007 NY Slip Op 3873, at * 2; see also Silverman v Bd. of Educ. of City of New York, 28 Misc 2d 20, 23 [App Term, 2d Dept 1961], aff'd 15 AD2d 810 [2d Dept 1962]; Ferill v Bd. of Educ. of Cent. Sch. Dist. No. 1, 6 AD2d 690, 691 [2d Dept 1958]), who are fully engaged in supervising the students, rather than engaging in other activities. (See Lopez v City of New York, 4 AD2d 48, 51 [2d Dept 1957], aff'd 4 NY2d 738 [1958]; Douglas v John Hus Moravian Church of Brooklyn, 8 AD3d 327, 328 [2d Dept 2004]; James v Gloversville Enlarged Sch. Dist., 155 AD2d 811, 813 [3d Dept 1989]; Silverman v Bd. of Educ. of City of New York, 28 Misc 2d at 23-24.)

In addition to the infant plaintiff's teacher, Waleed Cope, four other teachers were present, each accompanying a class of fourth graders. Mr. Cope monitored the 27 students in his class, who were either skating or playing video games, and presumably the other teachers did the same. (See Examination Before Trial of Walled Cope, Exhibit D to Affirmation in Support of Motion, at 82-84.) At least five parents were also part of the group.

The City makes no showing that it satisfied its duty to provide instruction and supervision to the infant plaintiff. It provides no affidavit from any school administrator or teacher asserting that the instruction and supervision provided were consistent with any recognized guidelines or customary educational practice, or that they complied with the City's own standards and requirements. Mr. Cope's testimony does not provide a substitute.

Like Empire, the City maintains that there was no proximate cause between any breach of duty and the infant plaintiff's injury, and like Empire does not sufficiently establish lack of causation on this record. Indeed, in the case of the City, a broader duty to its students might more readily allow a finding of constructive notice, and if "the school has sufficient notice, those cases in which it has been held that the plaintiff's injuries were caused by a sudden precipitous act which could not realistically have been anticipated or prevented are not applicable here." (See Mirand v City of New York, 190 AD2d 282, 290 [1st Dept 1993], aff'd 84 NY2d 44 [1994].)

Plaintiffs' motion for summary judgment would be untimely were it not for Empire's and the City's motions. (See Filannino v Triborough Bridge and Tunnel Authority, 34 AD3d 280, 281 [1st Dept 2006].) To the extent, however, that Plaintiffs' motion is based upon the transcript [*8]of the deposition of Empire's witness, which was not provided by either Empire or the City, it cannot be considered, since it would require the Court to go beyond the search of the record permitted by CPLR 3212 (b). (See id.) The Court notes, however, that, even if considered, the testimony of Empire's witness would not establish prima facie that Empire provided inadequate supervision in the absence of any showing by Plaintiffs, by expert testimony or otherwise, that would provide a standard of reasonable supervision against which Empire's conduct could be assessed. Similarly, Plaintiffs make no such showing as to the City. (See Lindaman v Vestral Cent. Sch. Dist., 12 AD3d at 917; Franck v Minisink Valley Sch. Dist., 136 AD2d 588, 589 [2d Dept 1988].)

Plaintiffs' motion is based primarily on the contention that "[t]he factual evidence in this case irrefutably entitles plaintiff to partial summary judgment because there was no adult supervision or a skate guard on plaintiff's rink at the time of his accident" (Affirmation, ¶ 2), which in turn is based upon the assertion that "[a]ccording to the plaintiff's uncontradicted testimony, there were no adults supervising the rink" (id., ¶ 12.) But the testimony of the infant plaintiff does not go that far; he testified only that he did not see anyone. If that is enough to create an inference strong enough for a prima facie showing on this motion, then Mr. Cope's deposition testimony, described above, is sufficient to raise a triable issue as to both the City and Empire.

Finally, Plaintiffs also fail to establish prima facie that the infant plaintiff did not assume the risk. The infant plaintiff's father concededly signed a document that permitted his son to join the trip to the Empire facility, although he testified that he "don't know what it was." (See Examination Before Trial of Mohammad O. Islam, Exhibit C to Affirmation in Support of Motion, at 121-22, 125.) Given the existence of the document and the negative inference that arises from Plaintiffs' failure to provide it, there is at least a triable issue on assumption of risk.

The motion of United Skates of America, Inc. and Empire Roller Skating Center (no. 18) is denied. The motion of the City of New York and Board of Education (no. 19) is denied. The Plaintiffs' motion (no. 20) is denied.

June 18, 2007___________________

Jack M. Battaglia

Justice, Supreme Court [*9]