Larkin v William Floyd Union Free School Dist.

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Larkin v William Floyd Union Free School Dist. 2012 NY Slip Op 30227(U) January 11, 2012 Sup Ct, Suffolk County Docket Number: 05495/2010 Judge: William B. Rebolini 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] copY SUPREME COURT - STATE OF NEW YORK IAS. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Jeanette Larkin, individually and as parent and natural guardian of Timothy Larkin, Plamtiffs, ~l11d Robert Ul110n No : 002; MG CDISPO Motion Date: 91'27/11 Submitted: 9/27/11 rndex No.: 0549512010 -agalnstWJ1liam Floyd Motion Sequence Free School District AUome\' for Plaintiff: Hodgson, Lleb at Law, P.C. Defendants. 376A Mum Street Center Moriches., NY 1 1934 Attorney for Defendants: Clerk of the Court Congdon, Flaherty, O'CaI!<'lgl1an, Reid, Donlon, Travis & Fishlingcr 333 Earle OVlngton 8oulevard, Ste 502 Uniondale, NY 11553-3625 Upon the following papers numbered 1 to 19 read upon thIS motion for summary j udgmcllt: Notice orMation and supporting papers, 1-15; Answering Affidavits and supportIng papers, 16L7: Replying AITidavits and supporting papers, 18 - 19. fn Ih1s action, plaIntiffs seek to recover darn ages for personal injuries sustal nee! by the in I'an! plaintiff TlfYlothy LarklIl and, derivatively, by the infant plaintiff's mother .Jeanette Larkin on November 17,2008 \"ihen the 13 year-old infant plaintiff I'amted while \vatchlJ1g a him in health cl:I.~sut \\111ham Floyd Middle School, a school which is part of the defendant Vh III am Floyd School District. The class \vas uIlder the supervlslOIl of the health teacher, defendant Robert Hodgson. Accurdlng to the inl·ant plamtiff, he began to feell1ghtheaded while he wns watching tile film. He got up from his desk to ask Hodgson for pcrmissJOn to go to the nurse, fa1l1t'ecland struck hiS head [* 2] Larkin v. William Flovd UFSD and Hodgsoll llldn No.: 05495/201.0 un:1 desK. In thc compl<lJn1.. the pL.lIntiffs allege that the lllfant pleuntiff sust<lll1cd injuncs as '-Iresult uf tile neglIgence uf the defendant school di stnct und defendant teacher. Spcci fically, the cUmpl,lll1l alkgcs thdlthe defendants were negligent 111 f,-ulmg to excn';lse reasol1uble care andjudgmcnt in (1) their supervi sion und control and hullng to provide proper and adequate mstructIon [() their students III showing a Video containing material of a graphic nature \vhlch muy be unsuitable I'or thclr studl'l1ts. espeCially the mfant plarntiff; (2) failing to proVide proper and :Idequate notICe, lIIfu]'mation and warn111gs to their students about the graphiC nalUrc of the matenal contamed in <l Video tu he viewed by their students, cspeClally the infant plaintiff. and thell SUdl m;Hcri;.ri may he ullsllilablc I'ur children; dnrJ (3) pernllttlllg and encouraging their students, lI1clucling the ll1rant pl~11l11ir(to view <-l ideo con(allllllg graphiC materiallhat V may be unSUItable for children. The hill ul· P~lrtlcul;.\rs further eLtborates that the defendants were negligent In failing to exercise the rcasiH1ahle c:\rc reqUired wlth regard to a chIld entrusted to their care; fUlling to properly train their employees in the supervision, safety and care of the infant pJainti n; cUUSlllg and CrCallllg a dangerous condition, and in fUiJlllg to exercise reasonable cure andJudgmellt III their superVISion ;Jnd control 01' the Infant plaintiff The defendants now move for summary judgment dlSll11SSll1gthe complalilt on the grounds. that the plamtiff's Ll1nting was an unforeseeable, sudden and spontaneous evell!, that It l~()llid 110thave been prevented and was not proxllnately caused by their negligence. inleT (I/ill, The proponent or a summary judgment motion must make a pnma lUCie shOWing otentitlement (0 Judgment as a maneI' of Juw, tendering suffiCIent evidence to demonstrate the absence ur- :l11Y material issues of fuct (see, Alvarez v, Prospect Hasp., 68 NY2d 320 [I SlS6j; Winc!!:rad y_ New York lJniv, Meet Or., 64 NY2J 851 [1985J; Zuckerman v Ot)/ol' New York, 49 NY2d 557 II ()SOlJ. Fai Iure to make such {JnJllu/cu.:ie showing reqUIres a denial of the motion, regardless oj' the sLilTicli.~ncy the opposing papers (see, Alvarez v, Prospect Hosp" 68 NY2d 3:::'0 [I 9S() I: \Vil1e~rad uf Ii, New York Unl\!, Med, Ctr., 64 NY2d 851 [1985 J). Once this shOWing has been l1leIde,IHlwevcr, tile hurden Silins lO the parry 0ppOSlllg the motion for summary Judgmelll to pruduce l~vldc[lll<\t-y pnlllr- i 11 adlnisslhlc form sulTicicnl to establish the eXistence of materl allssues of laC! whICh require ~ltl'ial urlhe action (see, Alvarez v. Prospectl-Iosp., 68 NY2J 320 [1986"]: Zuckerman VCILyufNew 'r'ork, 49 NY2cl557 ['1980]). In support' of the ms(anl motion, the defelldants submit, i/l./cr alia, (he infant plain(ill's 50 (h) IICdl-illg testImony and deposition testimony, t.he Infant pLllntill's Illother's 50 (h) hearing teslllllOny ;.metdeposit lOll testimony and the deposition (cstlmony and :rllidavl( of Robcn HudgSllll. /\s IS I-cicvunl to Ihis rnotlOtl, (he infant plaintJll's testimony dUring hiS 50 (11) hcanng ,Ind hiS liL:pOSillOIl\vas substantially similar. He testit'ieu that on the dute of the Incident he W,IS\vaLchlllg ,I vldeu III hiS third penud health class 'vvhich starled at approximately 9:4."\ a.m. Thcrl~ were :lppnJ,\lrnatcly lell students III the class. 'fhe Video was about the human bod)-' and huw ILre,lclS in cerlai 11 dangeruus sltuatiuns. For Instance, one scene IIlvol ved ;'1person i'ailing oil a ell IT,-lnelher leg gelling ripped llpen They showed her bloody leg I'or three or five seconds Prior to th~lt scene, there W,-IS ,llittle bit of blood III the mUVle, but not so much Another scene 111 video showed a person the WillI ,I giant boulder Oil his chest who 'vvastrying to push it off. That man \vas also bleeding a lillie [* 3] Larkin \'. William Flovd lJFSD and Hodgson Index No.: 05495/2010 Page J hil, hu( the Infant p!clln(iff did Illlt recall from where. He was laking notes onlhc movIe bec,luse IllS tl'acher tolu Illln there was going to be a test on It. Whlle he was watching the movie. approxlmately I'ive ur ten minutes lllto the mOVle, he began to feel woozy and dizzy. At hiS deposllJOn, the lIlfan( plalntlrf testIfied that most of the movie was blood and the blood ~vas making hlm feci a Irttlc Sick ,1Ild woozy. At the 50 (h) hearing he testified that he felt woozy for a couple uf seconds prior l() getting up Dur1J1g hiS deposition he testified that when he started to feel wool.y he tried to Ignore ll1(' feeling and draw, but that did not make him feel better. He then put his head down ,llld closed IllS eyes for five seconds but this did not help because he could still see the linage. I-Ie, (herearter, gut up from his scat and went to walk to the teacher's desk In the front of the room where he liltended to ask for a pass \'0 the nurse. He did not tell anyone he was not feeling well pnor to gettlllg lip. The leacher's desk was a couple of desks in front of hiS. He took approximately seven steps rowards the teacher's desk and then he passed out, struck hiS head on a desk and landed on IllS stomach un the ground. He had started to get tunnel vIsIon as he was walkmg, but did not say anything. \Vhen he woke up the teacher was next to him The teacher walked hi In to the back or the mom In Sit on a couch that was there. The nurse came a IllJIlute later and broughtlllll1 to her office In a wheelchml". The nurse called his parents. As a result uf the incident, the JIlfant plai nti ff reqUlred slllches 111 hIS right cyebrO\,v. The Infant plainrlll dlcl not reed I if the health teacher told hun what they would be dOing tl1:11 year and what the rules and regulations ohhe health class were. He scud they \vould be studymg the di Ilcrcilt parts of the hody_ The infant plaintiff testified that prior to the date of the lIlcident he had watched other videos about the humun body 111 his heulth class He had a little Ilghtheadeclness during these VIdeos but he did not lell anybody. He recalled the health teacher telling the class that they could opt out of watching a different video if the movie made them uncOlnfortable. He did nut recall the teacher statmg you could opt out of the v Ideo at issue, al thou gh he adllll tled that the teacher l1ever st,lted that he had to stay 10 walch the vidco_ The mfant plalJltll'f adnlll'ted thal he never tolu illS hCdllh leacher that he did not like these types of movies The I nhmt plalnti f1'testified that he had never l'alntedln schoul, or otherWIse, pl"lor to the date or the incident. He testified that he had UslmJlar feeling to the feeling he got he fore t"dlllung ,I 1"cw years prior when he was watehlllg a VIdeo at home. He also tcstiried that he relt lighthcaded or wouzy 111 sCience class the year before when his teacher was dcscnbmg a bloody scene Ii-lml (he teleV1Sl0l1 program CSJ. He did not tell his science teacher Ihat her descriptioll was making him woo/.Y. hUlluld her It \vas making hJJl1uncoml'ortablc and she let ~l1m get a drink ol"walcr. Prior to the delte of"the Illclclent, he did not tell anyone at the school that thIngs made hIm W007Y and he held nevcr I"ainlcd. When he wus youngel-, II'he got a cut he would reelllghtheaded. He never cunl.<lcled the pri nClpal, guiclcince counselor or anyone affi Iiated with the school to sL.lle that (111s was ;,1 )lI"ublclll rl)l· him. Slllce the dale 01' rhe incldenl, there was one occasion \vhere [hey wen; rcadmg a book 1I1 English class ~Ihout people eating each other and he started to feel wuozy and the te,lcher got the IILlI·SC. The tesllmony of the infant plaintiff's mother during the 50 (h) hearing and her deposltloll alsll was suhstantially simIlar. She testil'ied that she first learned of the InCident when she rccclvcd [* 4] Larkin v. William Flovd UFSD and Hodgson Index No.: 05495/2010 Pagl.' -t a phone call from the school nurse stating that her son had passed out and slruck hIS head. The lllrtlllr pLlintlff had nevcr passed om prevIOusly. She took the infant pluintiff to various physicIans following the incident and the neurologlst opmed that the hunting was ~lV~lSOV<lg,11 reaction The lI1f~ll1t lalntltl's mother knew that the Infant plaintiff did not like blood but did not know that he had p ,I tendency to get lightheaded when he saw blood or "ookey" thmgs and did not know he could pass nul from it. She never told anyonc at the school dIstrict at any point that her son would get upsct when he was bleeding. She also never sent any letters or notes to the school stating that her SOil should not urcould not watch movies like the one at issue. The infant plaintiff's mother nevcr made any compl:Jll1ts to the district prior to the date of the I1lcident about the health program ur the health teacher und she did not know of anyone that mude such compJamts. She never had any CllllversatiollS With the pnnclpal, teacher or guidance counselor after the lllCident and figured that the nurse would relay any relevant lllformation to them. To the best of her knowledge, the Illl:ant plalnt1ff has not famted smce the date of the incident. Robert Hodgson testified that he has \vorked for the defendant school (llstrict for the past lwemy two years and has over thllty years of teachmg experience. He taught health for several ye'lrs. He tooK three or four Sel11111arS teaching health ranging from teaching methods to safety. Hodgson on test1ried that the curnculum was set up by the health coordinator. He wus proVIded with the topics to be dl scussed pnor to the commencement of the school year and at the several tnllni ng sessions tlwt they had throughout the year. At trai 111g sessions the entire staff meets and discusses curriculums. n On the date of the lllcldent, he was Showlllg a 30 mmute video 1ll class entitled "The I !cart and the HUtn,1I1Pump." The movie was withIn the elght grade health CUITiculum which encompassed diScuss10n of the systems 01' the body and diseases and disorders. It was at the discretion or the teacher to determme how to relay the tUP1CSof the curnculum. He stated that he deCided to show thc subjcct video because it was a part of a series of videos that they utihze wh1ch follows a s)'slemic elpprouch to heulth. He had been USlllg the subject video for four or five years He purchased lhe Video alkr vlewmg the program on the discovery channel. ThIS VIdeo was i.llreu on general teleVISion without a disclaliller and Hodgson dId not see anything objectIOnable about the VIdeo to ,illY ~lge group. He submitted the video to hiS department chair and prinCipal prior to utill/lng It ,Uld it I,-vasapproved Other than the lllcldent at Issue, there was never UllYother Il1clcicnt I'elated to this movie. Hc has continued to use the IllOVle follo\Vltlg the inCIdent . .J\tlhc st~lrr of class (mlhe date of the inCIdent, he told the students briefly wilal to expecl and "dvlsed thcm that 11' nyone was uncomlortable or upset to let hllll know and they wuuld be excused, a Hodgson testified th~lllt was the policy of the school to let students determine theIr comf()rt level \\llth any gl ven tOPIC. At the beginmng of each school year he gIves hIS students ,m overview 01'the CI~lSS He relates the pollcy that If someone IS upset for any reason by ~ltOPIC, they can hc excused. In adc1ltinn, the school polICY 1Stu send a student tu the nurse If they I'eel SIck. The parents alsu relTI ve a p~lCket prior to the students taking the state-mandated health progr,lm :llld the parents can n]JI tl1elr dliid out of ccrtam sections. After speakmg to the students on the elate 01' lhe lllcidenL HuclgSllll started the movie and walked around the room for a hull.' bl!. Towards the end of thl: Illuvic and, ahout' two-thmb the \vay through the class, he went to his desk In the front of the room [* 5] Larkin v. William Flovd l]FSJ) and Hodgson Index No.: 05495/2010 Page 5 Tile 111 fant plallltiJ'r approached b1ln and mentIOned that he felt LUnl. The infant plwllti tllookcd p~Lle ~ll1dl-JudgsUI1 ImmedIately attempted to go around his desk towards him. He could not gel to the in fant phlllltilT 1Il time and he fell bet\veen the desks. The infant pJalIltiff regal oed consciousness shortly afterwards. Hodgson asked another student to get the nurse and the nurse amyed wlth a wbeekh,ll]" Hodgson testi fied that If' the nurse had any ITlformation that would affect the lJ1strucrion of a SlLltlGnt,she would notl fy all of the student's teachers. He never receIved noti ficatlOll from lhe nurse \Vlth respecl to the ll1fant plaintiff. In his affldavlt, Raben Hodgson states that the VIdeo he was showll1g his health cl~lss on the date of Lhe lI1cldent was litled "The Human Pump." He sublmtted a photocopy of the front and hack o['lile Video case and CD. He asserted that there were no warnings on the VIdeo cuse or the label of the CD whatsoever. Likewise, once the CD was playing there were no warlllngs displayed prior to UI-dunng the movie. Hodgson averred thut he had VIewed the video many times with many other eighth grade classes and neverrecelved any complaints about the movie. Hodgson further avers that the movie deSCrIbed by the infant plaintiff during hlS deposllion was another mOVIe from the samc series entitlcd "Strength" He submitted a photocopy of tIllS CD as well_ Hodgson avers th~ll'there were no cautions or warnings on thiS VIdeo, CD or video case either. He avers that he has also wel1ched thiS VIdeo mUI1)'times with eighth grade classes and has never had any complaints about 11or its contents. The eVidence submitted estah!Jshes the defendants' prtlllCl facie entitlement" to summary Judgment dismisslIlg the compluint. It IS well-settled that schools have a duty to adequately supervlsc thelt" students and to exercise the same degree of care toward Its students as would a reasonably prudent parent (see, Mmll1d v. Citv orNew York, 84 NY2d 44, 49 )1994.1, Brandv B. v. Eden Cent School Dlst., 1S NY3d 297 [20 I0]; Rodri ~ue7, v. Riverhead Cent. School Dlst., 8S AD::;d I 147 I)"J Dept., 20 itJ). A school, however, IS not an lllsurerof Its students' safety and Will he held liahlc only for foreseeable Injuries proximately related to the absence of adequate superVIsion (see, Mlrllt1(.!v. Clly of New York, 84 NY2d44 [1994J, RodrIguez V Riverhead Cent. School DISI., 8:'1 AD::;d 1147 [2,,<1 Dept., 2011]). Tn this regard, it IS well settled that schools cannot reasonably be expected 10 continuously supervIse and control all of the students' movelneill's and actIVIties (sec, Keavenv v, Mahopac Cenl. School Dist., 71 AO]d 9SS [2"J Dept., 2010]: see also, Tanenbaum v. Minnesmlke Elementary School, 7] AD]d 743 [2"J Dept., 2010]). Moreover, a school district's alkged lapse III supervision is not a proximate cause of an accident where the accldent: occurs 111 so :-;hUrl ~I span uf Lime that even the most mtellse superVIsion could nol have prevented II (see, 'Lll1cnhaul'n v. Minnes<.luke Elementary School, 73 AD3d 743 [2,,,1 Dept., 2010]). The eVidence SUblllltied here dernonstrates that the defendants properl y supervised lhe Infant pL.lIntll'f and, In tlllY event, that any lack of supervIslOn wa" not a proximate C<luse 01' the Infanl plaintll"!"'s ill.lurles (see, O'Brien v. SavvIlle UnIon Free School Dlst., 87 AD::;d 56() i2'ltl Dept ,2() I I I: Schleefv. Riverhead Cent. School Disl" 80 AD3cl743 [2"d Dept., 2011.1; Tanenb~IUlll Ii Mlnnesaukc [Icmenlarv Schuol, Ti AD3d 743 [2,,,1Dept., 2010]). In trns regard, the eVidence shows that the l.kl"t~l1lbllts L'xcrclsed reasonahle care and JudgmentlTl their supervis]()]l and contml of the Jllf~lI1t plalntifl and were not negligent l!l displaymg the movie to the class. The evidence further [* 6] Larkin v. William Flovd IJFSD and Hodgson Ind<':\ No.: 05495/2010 Page 6 dCl11un:;lratcs that the infant plaintiff's purp0l1cd rcsponse to the mOV1Cand hIs subsequcnt inJurlcs vv'ere nUl a foreseeable consequcnce of thc defendants' conduct In displaYIng the movie (see, '!cner~dlv, Brandy B. v. Eden Cent. School Dist., 15 NY3d 297l2010J) Indeed, It IS undisputed tlwt the defendants did not have any knowledge or notice of a likelihood of injury to the lllfant plaintiff related to hiS vlCwing of the subject movie (cl'., HarriS v, Debbie's Creative Chdd Care. Inc .. 87 AD3d 615 [2"J Dept., 2011J; Ciomez v. Floral Park-Bellrose Union Free School DISC, 83 AD3d 778 [2nd Dept.. 201IJ). Further, to the extent that the plamtiffs allege that the defendant's arc liable for <.l L.ulure tu warn the infant plaintiff ofthe contents of the movie, such contention 1Slackmg in mcrit. Thcre IS no ciuly to \-varn against a condition which is readily observable, or an extraordllwry occurrcnce, \.-vhichwould not suggestltsel r to a reasonably careful and prudent per"on us one which :-:;huuldbc guarded against (see, Hani" \I. Debbie's Creati \Ie Chdd Care, [nc" 87 AD3d 61 5 l1"d Dept, "2()11 J). Llkev'il:-:;c,there 1S no duty to warn an individual about a concl1tion of which he or she is ~lclllally aware (sce, Johnson v. Cantie, 74 AD3d 1724 [4(10 Dcpt., 2010]: Alanasoff v. Elmont Unioll Frce Sch. Dist.. 18 ADJd 678 [2"J Dcpt., 2005]). [n Opposition to the defendants' prilllafacie shO\ving of entitlement to summary Judgment, the pl,lll1ti ffs faJled to submit evidence to raise a triable issue of fact (see, Alvarez v. Prospect Hosp., 68 NY2d 320 0986J; Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, It IS ORDERED that the motioll by the defendants ulmplallll Dated: for summary Judgment disJlllssl1lg the is granted. / , 'I' . I" I 1 ii"! x FINAL DlSPOSITION ','lj~v( f i",,--,,//'/ / /;;(7,// /'tf.[ L':..A J I [ce. HON. WILLIAM li'j}-\) B, REBOLINI. NON-FINAL DISPOSITION J.s.c. .

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