State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 522172 

________________________________

MEGAN ELBADWI, an Infant, by

REBECCA S. GREEN, Her Parent

and Guardian,

RespondentAppellant,

v MEMORANDUM AND ORDER

SAUGERTIES CENTRAL SCHOOL

DISTRICT,

AppellantRespondent.

________________________________

Calendar Date: May 23, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Mills Law Firm LLP, Clifton Park (Christopher K. Mills of

counsel), for appellant-respondent.

Basch & Keegan, LLP, Kingston (John A. DeGasperis of

counsel), for respondent-appellant.

__________

Egan Jr., J.

Cross appeal from an order of the Supreme Court (Fisher,

J.), entered September 23, 2015 in Ulster County, which partially

denied defendant's motion for summary judgment dismissing the

complaint.

At all times relevant, plaintiff was a 10-year-old student

attending Cahill Elementary School in Ulster County. On the

morning of December 13, 2012, plaintiff's class gathered in the

school's cafeteria for recess before lunch. According to
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defendant's lunch monitor, plaintiff and her classmates were

expressly instructed to remain on the blacktop area adjacent to

the school's playground and not to venture onto the playground

itself – as the rubberized surface of the playground was icy and

the equipment was covered with snow. Less than one minute after

exiting the school for the scheduled outdoor recess, plaintiff,

in an effort to avoid a collision with a fellow classmate, jumped

onto a double slide located on the playground, slipped, fell and

fractured her upper left arm.

Plaintiff thereafter commenced this negligence action

against defendant. As amplified by her bill of particulars,

plaintiff alleged that defendant was negligent in supervising its

students and, further, in failing to maintain its property in a

reasonably safe condition. Following joinder of issue and

discovery, defendant moved for summary judgment dismissing the

complaint. Supreme Court granted defendant's motion as to the

negligent supervision claim, but denied the motion as to the

premises liability claim – finding a question of fact as to

whether defendant had maintained the playground in a reasonably

safe condition. The parties cross-appeal.

Contrary to plaintiff's assertion, Supreme Court properly

granted defendant's motion for summary judgment dismissing the

negligent supervision claim. To be sure, "[s]chools 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" (Conklin v

Saugerties Cent. Sch. Dist., 106 AD3d 1424, 1425 [2013] [internal

quotation marks and citations omitted]; accord LaValley v

Northeastern Clinton Cent. Sch. Dist., 130 AD3d 1276, 1276

[2015]). The case law makes clear, however, that schools are not

insurers of their students' safety (see Lewis v Board of Educ. of

the Lansingburgh Cent. Sch. Dist., 137 AD3d 1521, 1522 [2016];

Conklin v Saugerties Cent. Sch. Dist., 106 AD3d at 1425); rather,

schools need only "exercise the same degree of care as would a

reasonably prudent parent placed in comparable circumstances"

(Lewis v Board of Educ. of the Lansingburgh Cent. Sch. Dist., 137

AD3d at 1522 [internal quotation marks and citation omitted]; see

Hofmann v Coxsackie-Athens Cent. School Dist., 70 AD3d 1116, 1117

[2010]; Wagner v Oneonta School Dist., 68 AD3d 1516, 1516-1517
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[2009]). Where, as here, the underlying accident "occurs in so

short a span of time that even the most intense supervision could

not have prevented it, lack of supervision is not the proximate

[cause] of the injury and summary judgment in favor of the school

defendant is warranted" (Lopez v Freeport Union Free School

Dist., 288 AD2d 355, 356 [2001] [internal quotation marks,

brackets and citations omitted]; see Doyle v Binghamton City

School Dist., 60 AD3d 1127, 1128 [2009]; Bellinger v Ballston Spa

Cent. School Dist., 57 AD3d 1296, 1297-1298 [2008], lvs denied 12

NY3d 704, 878 [2009]; Ronan v School Dist. of City of New

Rochelle, 35 AD3d 429, 430 [2006]; Siegell v Herricks Union Free

School Dist., 7 AD3d 607, 609 [2004]).

Here, defendant's expert, an administrator with 25 years of

experience in primary school education, opined that defendant's

student-to-monitor ratio was more than adequate for purposes of

supervising the children during recess and, further, that the

lunch monitor otherwise provided reasonable and adequate

supervision on the day in question. Even assuming, however, that

the record as a whole was sufficient to raise a question of fact

on this point, summary judgment dismissing the negligent

supervision claim nonetheless was appropriate, as plaintiff's own

testimony demonstrates that the alleged lack of supervision was

not the proximate cause of her injuries. According to plaintiff,

as soon as the school doors opened, she and two of her friends

ran outside in the general direction of the playground. While

running on the blacktop area adjacent to the playground,

plaintiff's friends veered off toward an area where the students

could play kickball. Plaintiff apparently continued toward the

playground and, when one of her friends called her name,

plaintiff looked away from her direction of travel. At this

point, plaintiff, who by her own admission "wasn't paying

attention," nearly collided with another classmate – prompting

plaintiff to "r[u]n around [her classmate] so that . . . [she]

didn't bump into him and fall down." Plaintiff then realized

that she was about to trip over the end of a double slide located

on the playground; to avoid tripping, plaintiff followed her

"quick instinct" and "jumped up on the bottom of the slide,"

whereupon she slipped on the snowy and icy surface, fell and

broke her arm. By her own estimate, plaintiff's fall occurred

approximately 45 seconds after she exited the school building. 
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In light of plaintiff's testimony as to the manner and time span

in which her accident occurred, we are of the view that "no

amount of supervision" could have prevented plaintiff's accident

and resulting injuries (Spaulding v Chenango Val. Cent. School

Dist., 68 AD3d 1227, 1229 [2009], lv denied 14 NY3d 707 [2010];

see Ronan v School Dist. of City of New Rochelle, 35 AD3d at

430). Accordingly, defendant was entitled to summary judgment

dismissing the negligent supervision claim.1

We reach a similar conclusion with regard to plaintiff's

premises liability claim. To prevail on its motion for summary

judgment, defendant was required to "establish as a matter of law

that it maintained the [playground] in question in a reasonably

safe condition and that it neither created the allegedly

dangerous condition existing thereon nor had actual or

constructive notice thereof" (Reid v Schalmont School Dist., 50

AD3d 1323, 1324 [2008] [internal quotation marks, brackets and

citations omitted]; accord Gerfin v North Colonie Cent. School

Dist., 41 AD3d 1085, 1086 [2007]). To that end, defendant

tendered, among other things, an affidavit from its expert,

wherein the expert opined that the subject playground "was

maintained in an appropriate condition." Specifically,

defendant's expert stated that it was entirely permissible "to

allow children to play outside on the snow as long as [they had]

appropriate footwear" and that it was "well within the standard

1 Plaintiff also contends that she was not provided with

adequate instructions on the day of her accident – specifically,

a directive to stay off of the playground equipment. As noted

previously, the lunch monitor testified that she was absolutely

certain that she told the children – including plaintiff – that

they were to remain on the blacktop and were not allowed to

venture onto the playground itself. In her affidavit in

opposition, plaintiff acknowledged that the monitor "gave . . .

some instructions," but she could not recall the precise nature

of those instructions. Although plaintiff primarily raises this

issue in the context of her premises liability claim (see infra),

we are of the view that this argument is part and parcel of

plaintiff's negligent supervision claim, which, as already

discussed, fails for lack of causation.
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of care" for defendant to allow such activity – noting that

"[c]hildren are allowed to play in the snow at nearly every

elementary school in this area." More to the point, defendant's

expert opined that there was "no requirement or obligation for

[defendant] to clean snow and ice off of the playground surface"

– a task that would have been "nearly impossible" due to the

rubberized surface material. With respect to the playground

equipment itself, defendant's expert concluded that, inasmuch as

plaintiff and her classmates were instructed not to use such

equipment, defendant was not required to clear the equipment of

snow and ice.2 Such proof was, in our view, sufficient to

discharge defendant's initial burden on its motion for summary

judgment.

As to the sufficiency of plaintiff's proof in opposition,

plaintiff did not provide a competing expert affidavit or

otherwise tender sufficient admissible proof to raise a question

of fact as to defendant's snow removal obligations – or the

adequacy of its efforts – relative to the playground itself. 

Rather, both in response to defendant's motion and in her brief

on appeal, plaintiff has offered nothing more than her

unsubstantiated assertion that defendant was required to remove

all snow and ice from its playground. To the extent that the

equipment located on the playground may be viewed as an

independent component of plaintiff's premises liability claim, we

nonetheless are persuaded that such claim should be dismissed. 

Even assuming, without deciding, that plaintiff and her

classmates were not told to stay off of the playground equipment

on the day in question, thereby calling into question the

validity of the opinion offered by defendant's expert as to the

need to clear such equipment of snow and ice in the first

instance, the fact remains that plaintiff's accident was – by her

own admission – the result of her inattentiveness while "running

around with [her] friends" during recess. That inattentiveness,

in turn, resulted in a near collision with another student who,

2 As noted previously, defendant's lunch monitor testified

that she was 100% sure that she told the children – including

plaintiff – that they were to remain on the blacktop and were not

allowed to venture onto the playground. 
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according to plaintiff, "ran in front of [her]"; in response,

plaintiff elected to jump onto the base of the double slide in

order to avoid the collision – despite observing snow on portions

of the playground and "some snow up by the top of the slides." 

Under these circumstances, plaintiff's premises liability claim

cannot stand, and Supreme Court should have granted defendant's

motion for summary judgment dismissing the complaint in its

entirety.

Garry, J.P., Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as denied defendant's motion

for summary judgment dismissing plaintiff's premises liability

claim; motion granted in its entirety and complaint dismissed;

and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court