Dauch v West Babylon Union Free School Dist.
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Dauch v West Babylon Union Free School Dist. 2013 NY Slip Op 32115(U) September 3, 2013 Sup Ct, Suffolk County Docket Number: 11-11941 Judge: Denise Molia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] COPY INDEX No. 1 1- 1 194 1 CAL NO. 12-0 1 8640T- SLPREME COURT - STATE OF NEW YORK I.A.S. PART 39 - SUFFOLK cowry PRESENT: Hun. MOTION DATE: 2-25- 13 5-3-13 ADJ. DATE Mot. Seq. #! 001 - MG DENISE F. MOLIA Acting Justice of the Supreme Court X BRIAN D,ZUCH, an infant by his mother and natural guardian, ERIN M. DAUCH, and ERIN M. DAUCH. individually, SIBEN & SIBEN, LLP Attorney for Plaintiffs 90 East Main Street Bay Shore, New York 11 706 Plaintiffs, - against - WEST BABYLON UNION FREE SCHOOL DISTRICT, CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, ESQS. Attorney for Defendant 333 Earle Ovington Boulevard, Suite 502 Uniondale, New York 1 1553 Defendant. Upon the following papers numbered I to 45 read on this motion for summary iudgment ; Notice of Motion/ Order Answering Affidavits and to Show Cause and supporting paper:, 1 - 24 ; Notice of Cross Motion and supporting papers -; (n asupporting papers 25 - 42 ; Replying Affidavits and supporting papers 43 - 45 -; Other -; 1 it is, ) ORDERED that this motion by defendant West Babylon Union Free School District for summai-y judgment disniissing the complaint against it is granted. On September 13, 20 10. infant plaintiff Brian Dauch, who was in the first grade at the time. suf'kred injuries when he fell off of metal monkey bars while playing outside on the playground located at the JJ:K Elementary School in West Babylon. New York. Subsequently. his mother, plaintiff Erin I>auch. suing individually and on behalf of her son. commenced this action against defendant West Babylon tinion Free School Di:itrict. By their bill of particulars, plaintiffs allege that defendant School District \vas negligent. among other things, in failing to supervise infant plaintiff at the playground and in f'ailing to maintain the premises in a reasonably safe condition. Specifically, plaintiffs allege that the low parallel bars that were part of the monkey bars were slippery due to rain. and that the surface bcncath the bars was in a dangerous and defective condition in that the wood chips were placed on hardpan or compacted earth. [* 2] Dauch v West Babylon UFSD Index No. 11-1 1941 Page No. 2 Def endant now moves for summary judgment dismissing the complaint. arguing that there was adequate supervision of infant plaintiff, and that there is no evidence a dangerous condition existed in the area of the playground where infant plaintiff fell. In support of its motion, defendant submits a copy of the pleadings. transcripts of the parties deposition testimony, the transcript of plaintiffs 50-h hearing testimony, photographs of the :subject monkey bars. and an expert affidavit of Margaret Payne. Plaintiffs oppose the motion, arguing that there are triable issues of fact as to whether defendant provided adequate supervision of infant plaintiff, imd whether there was a dangerous condition on the subject playground. In opposition, plaintiffs submit transcripts of the parties deposition testimony and their own 50-h hearing testimony, photographs of the subject playground, their own affidavits, and an affidavit of Robert Schwartzberg . At an exaniination before trial and a 50-h hearing, infant plaintiff testified that the accident occurred during recess when he went to play by the monkey bars. He testified that he stepped on a metal bar and that when he tried to step onto a second metal bar, he slipped and fell. He testified that Mr. Haug, the gym teacher, and three aides were supervising the children during recess. Infant plaintiff further testified that he was never informed of any rules for playing on the playground. At his examination before trial, Mr. Haug testified that he is employed as a physical education teacher by the West Babylon School District. He testified that at the time of the accident he was supervising the students during recess, and that he was in charge of the three aides who were also monitoring the students. He te.stified that each aide was assigned an area to stand and observe the children, and that the aide closest to the monkey bars where infant plaintiff fell was at most 15 feet away. He testified that the students are not allowed to hang upside down from the monkey bars, or to stand or sit on top of the parallel bars. Mr. Haug further stated that while the aides do not instruct the students as to the rules, they would enforce the rules. He testified that he does not recall observing any students walking on the parallel bars prior to the accident. He stated that prior to allowing the students on to the playground, he would inspect it to see if there are broken bottles or other items on the playground. He testified that he does not recall if it was wet outside the day of infant plaintiff s accident, but that if it was. the custodian would go out and dry off the playground equipment. He also stated that there were five to six classes outside in the playground at the time of the accident. At his examination befbre trial, Frank Gentilesca, head custodian of the school, testified that his duties include cleaning the classrooms and maintaining the exterior of the school. He described the ground c o \ w underneath the metal monkey bars as sand covered by wood chips. He testified that the playground area is inspected each school morning. Marywet Payne. a certified playground safety inspector. states in her affidavit that she visited the subject playground on April 5 , 201 1 to inspect the surface under the subject monkey bars. She states that the playground surface consisted ofengineered wood filler with a depth of 3 inches to 4 inches over a la! er of sarid that was 4 inches to 5 inches. She states that the playground surface met all ASTM and CPSC speciiications. She states that the height of infant plaintiff-s fall was no more than 3 feet, and that the surfacing depth would h a w conservatively met specifications for a fall where the height is over 6 feet. Ms. I ayie further states that ATSM standard and the CPSC Public Playground Safety Handbook guidelines on surfacing relate only to preventing head iiijuries and do not claim to prevent other injuries [* 3] Dauch West Babylon UFSD lIIde?t No. 1 1 - 1 1941 Page No. 3 ~7 from falls. including broken limbs. She opines that the equipment was age appropriate and the maintenance of the playground was reasonable and safe for an elementary school. She states that playground supervision and rules were adequate, as there were approximately 125 children with 4 aides and a teacher, which is a ratio of 25 to 1. She states that it was appropriate to allow the children to play on the playground equipment a:<it was not raining. She concludes that no act or omission by defendant caused or contributed to infant plaintiffs injury. Robert Schwartzberg, a licensed engineer. states in his affidavit that he visited the subject playground on November 9, 2010 to inspect the playground surface. He states that the surface beneath the metal bars where infant plaintiff fell was comprised of wood chips, which were easily displaced by persons walking on them. He states that the wood chips were spread over the hardpan surface such that the thickness of the wood chips varied from zero to less than once inch in the vertical. He states that the lower horizontal bars which infant plaintiff fell from measured 27 inches in the vertical and that the galvanized finish had worn off where children walk atop the bars. Mr. Schwartzberg states that the metal members of the monkey bars were in a slick and slippery state, because of the failure to maintain and refinish them, and that a wet condition would make the galvanized finish even more slick and slippery. He concludes that a fidl from the subject metal bars would result in personal injury due to the failure to provide a sufficiently resilient and absorbent surfacing material beneath the playground apparatus. In reply, defendant submits an affidavit of Payne, who states that Schwartzberg did not dig holes in the dirt during his inspection and that he only looked at the top layer of the dirt. She states that while Schwartzberg contended that no sand had been added to the playground for 15 years, sand is not added under wood fiber as it is a sub base. Payne states that the assertion by Schwartzberg that the finish had rubbed off the metal equipment causing it to be slick and slippery is incorrect, because if the galvanizing process had been worn off, the bars would have been rusty. On a motion for summary judgment the movant bears the initial burden and must tender evidence sufficient to eliminate all material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1, 487 NYS2d 3 16 [ 19851). Once the movant meets this burden, the burden then shifts to the opposing party to demonstrate that there material issues of fact; mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (.see Ziickerman v City ofNew York, 49 NY2d 557.427 NYS2d 595 [ 1c'80]; Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [ 2004 I). As the court-s function on such a motion is to determine whether issues of'fact exist, not to resolve issues of'fact or to determine matters ofcredibility, the facts alleged by the opposing party and all inferences that may be drawn arc to be accepted as true (.we Roth v Barreto, 289 AD2d 557. 735 NYS2d 197 [ 2 d Ilept 20011: O'Neill v Fisltkill, 134 AD2d 487, 521 NYS2d 272 [2d r k p t 19871). Schools are under a duty to adequately supervise the students in their charge alld will be held liable for foreseeable in-juries proximately related to the absence of adequate supervision (see Mirarid v City o New York 84 NY2d 44, 614 NYS2d 372 [1994]; Swart v Torun ofBrookltaveri, 32 AD3d 1012. f 821 UYS2d 265 [2d Dept 20001). While schools are not insurers of safety. they are obligated to evcrcise such care of their students as a parent of ordinary prudence would observe i n similar f circumstances (tee iWirciiid v C@ o New York, s i p y Srvcrri v Torvri qf Brooklt(iven. s i p u ) . [* 4] Dauch v West Babylon UFSD Index No. 11-1 1941 Page No. 4 MoreoLw, it is fundamental that for a plaintiff to recover against a defendant in a negligence action alleging injury due to a dangerous condition on real property. the plaintiff must prove that the defendant owed the plaintiff a duty and that the breach of that duty resulted in the injuries sustained by the plaintiff (see Turcotte v Fell, 68 NY2d 432, 5 10 NYS2d 49 [ 19861; Atkins v Glen Falls City Sclz. Dist.. 53 NY2d 325, 441 NYS;!d 644 [1981]; Kimbar v Estis, 1 NY2d 399, 153 NYS2d 197 [1956]). There must be evidence that establishes that the defendant either created the defective condition or had actual or constructive notice of the dangerous condition, such that the defect was apparent, visible and existed for a sufficient length of time to allow the defendant time to discover and remedy the situation (see Moss v JNK Capital Ltd., 85 NY2d 1005, 631 NYS2d 280 [1995]; Gordon vAmerican Museunz o Nrrtciral History, 67 NY2d 836, 501 NYS2d 646 [ 19861; Cafiero v Inserra Supermarkets, 195 AD2d f 681.599 NYS2d 342 [3d Dept 19931). Furthermore, the fact that the defendant may have a general awareness that a defective condition may exist is not legally sufficient to constitute notice of the particular condition that caused the plaintiffs injuries (see Kennedy v Wegmans Food Markets, Inc., 90 NY2d 923,664 NYS2d 259 [1997]; Gordon v American Museum of Natural History, supra). Here, defendant established prima facie that it provided adequate supervision of infant plaintiff during recess, and that a lack of supervision was not a proximate cause of infant plaintiffs injuries (see Troiani v Wltite Plains School Dist., 64 AD3d 701, 882 NYS2d 5 19 [2d Dept 20091; Arceri v Smitlitown Cent. School Dist., 82 AD3d 1140, 919 NYS2d 860 [2d Dept 201 11; Cimalfonte v Levittown Bd. of Educ.. 299 AD2d 445, 749 NYS2d 735 [2d Dept 20021). Mr. Haug testified that a lunch aide was no more than 15 feet from where the accident occurred, and the record indicates that the staff to student ratio was appropriate. Moreover, the accident happened so suddenly and unexpectedly, and in such a short space of time, that even the most intense supervision could not have prevented it (see Rerirdon v Carle Place Union Free ScIioo/Dist., 27 AD3d 635, 813 NYS2d 150 [2d Dept 20061; Cerrato v Carpella, 22 AD3d 701, 804 NYS2d 402 [2d Dept 20051). As to plaintiff s assertion that there was insufficient ground covering to protect children who fall 1Lom the playground equipment, defendant established its prima facie entitlement to summary judgment by demonstrating that it did noi. create or have any notice of the alleged dangerous condition (see Savristano t PM Amusements, 47 AD3d 72, 850 NYS2d 178 [2d Dept 20081). Moreover, defendant demonstrated that the wood chip ground cover used to cushion an impact under the parallel bars was Gray v South Colorzie Cent. School Dist., 64 AD3d maintained 111 a reasonably safe condition ( s e ~ I 125, 883 hYS2d 647 [3d Dept 20091; Paddeti 1 County of Scrffolk. 52 AD3d 663, 860 NYS2d 604 [2d Dept 20081: Brinks v Freeport Union Free School Dist., 302 AD2d 34 I . 753 NYS2d 890 [2d Dept 20031). Thus. defendant shifted the burden to plaintiffs to come forth with sufficient admissible evidence to raise a triable issue offact (see Alvrirez v Prospect Hosp., 68 NY2d 320. 508 NYS2d 923 [ 19861: Ziickerman v City of New York. 49 NY2d 557. 427 NYS2d 595 [1980]). In opposition. plaintiffs failed to raise a triable issue offact (see Riisso v VrrlleevCent. Scliool Disf..3 3 AD3d 782. 822 NYS2.d 607 [2d Dept 20061: Cupotosto v Romrin C~itltolic Diocese. 2 AD3d 384. 767 NYS2d 857 12d Dept 20031). As to the assertion that there was a dangerous condition on the playground ~vhcre accident occurred, the affidavit of plaintiff-s purported expert did not establish the that he possessed the requisite skill. training, education, knowledge or experience from which it can be [* 5] Dauch v West Babylon UFSD IndexNo. 1 1 - 1 1941 Page No. 5 assumed that the information irnparted or the opinion rendered is reliable (see Milligarz v Hrrrborfields Cent. SclioolDist., 105 AD3d 825, 962 NYS2d 664 [2d Dept 20131; O Boy vMotor Coach Itidus., Zm.. 39 AD3d 5 12. 834 NYS2d 23 1 [2d Dept 20071). Moreover. while Schwartzberg s affidavit states that he is an engineer, who has experience performing work related to safety, structures, facilities systems. buildings and their appurtenances. his credentials do not indicate that he has expertise in playground safety. Furthermore, the Court notes that while his affidavLt states that his curriculum vitae is attached, none is found. Schwartzberg s aftidavit, therefore, was insufficient to raise a triable issue as to whether there was adequate ground cover and whether the monkeys bars were in a dangerous condition. F:inally, plaintiffs failed to present any evidence supporting their allegation that the supervision of infant plaintiff was inadequate (see Carey v Comnzack ZJnioiz Free School Dist. No. 10, 56 AD3d 506, 867 NYS2d 525 [2d Dept 20081; De Los Santos v New York City Dept. of Educ., 42 AD3d 442, 840 NYS2d 91 [2d Dept 20071). ,4ccordingly, defendant s motion for summary judgement dismissing the complaint against it is granted A.J.S.C. X FINAL DISPOSITION NON-FINAL DISPOSITION
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