New York Family Law Blog
This is a family case brought about during a school camping, then nine-year old child, sustained personal injuries at the Park while playing tag with some 15 fellow campers. The campers were waiting to be picked up at the conclusion of the camp day and were playing tag, as they often did, in a dedicated playground area which also contained a large outdoor play system or “Jungle Gym” comprised of interconnected and elevated walkways, bridges, ramps and ladders.
A witness testified that the tag games was generally conducted on the Jungle Gym – after the game had been ongoing for some thirty minutes, another camper began to chase after him in order to tag him. In an effort to escape, he ran “really fast” towards the Jungle Gym and then ran to an elevated bridge pathway on the equipment, bordered on both sides by a rail fence. He then climbed onto and/or mounted the top of the fence, which was capped by a horizontal rail, and secured himself by gripping the rail with his hands, allowing his legs to dangle freely below.
The witness allegedly sat on the fence in this fashion, “for like ten minutes” because, as he explained, the camper who was attempting to tag him waited “a really long time” anticipating that he might jump. Although the chasing camper ultimately departed and attempted to tag another person, Frank’s hands eventually got “sweaty” and he lost his grip and fell, causing him to strike the ground several feet below and sustain personal injuries, including two fractured wrists.
By summons and verified complaint dated May, 2009, the infant plaintiff, by his mother, individually, commenced the within action to recover damages for, inter alia, personal injuries. Among other things, the plaintiffs’ verified complaint alleges that Crestwood “failed to properly and adequately supervise, control and manage the campers” at the playground site.
The defendants have answered, denied the materials allegation of the complaint and interposed various affirmative defenses. Discovery and depositions have been conducted and both the County and school now jointly move for summary judgment dismissing the complaint.
Significantly, the plaintiffs advise that they do no oppose that branch of the motion which is to dismiss the complaint with respect to Nassau County. Accordingly, the complaint is dismissed insofar as interposed against the defendant County of Nassau.
While schools and camps are not insurers, and will liable only for foreseeable injuries proximately related to the absence of adequate supervision, they nevertheless “have a duty to adequately supervise their students” by exercising the same degree of care which would be exercised by a reasonably prudent parent.
Notably, the scope and intensity of the supervision required in each case generally constitutes a question of fact, dependent “largely on the surrounding circumstances * * “”. Further, “although constant supervision in a camp setting is neither feasible nor desirable, it is plain that very young campers will in many situations require closer oversight than their older counterparts”
With these principles in mind, and viewing the evidence “in the light most favorable to * * * [the plaintiffs], as is appropriate in the context of* * * [a] motion for summary judgment”
Although the school contends, among other things, that it provided ample and competent on-site supervisory personnel and that Frank’s accident occurred precipitously, the evidence before the Court has generated opposing inferences and credibility issues with respect to, inter alia, the precise manner in which – if at all – Frank was sitting on the fence, and the period of time which elapsed while he was allegedly seated there.
Significantly, the witnesses whose depositions are attached to the parties’ submissions have provided materially conflicting accounts of Frank’s conduct immediately prior to the accident. Among other things, Frank himself testified that he had been sitting atop the fence for ten minutes. A camper who witnessed the incident stated that she was “certain” that Frank was sitting on the fence for at least a minute, although she also claimed that he deliberately jumped in response to a “dare” issued by an unnamed camper. Another camper claimed that he never observed Frank seated on the fence prior to falling and did not hear anyone dare him to jump off the Jungle Gym.
Notably, neither of the two testifying counselors actually observed what Frank was doing immediately prior to the fall, even though Crestwood’s program director and supervising counselor claimed to be only 15-20 feet from where the victim fell. Another counselor – who testified that climbing on the equipment had occurred previously during tag games- claimed to have seen Frank for the first time only as he was “in the air” while falling, but never noticed what he was doing just prior to the fall. The record suggests, in fact, that none of the counselors who were assigned to supervise the children observed what Frank was doing immediately prior to the fall.
It bears noting in this respect that school’s 2008 “Staff Manual” recognizes the potential for injury absent proper and vigilant playground supervision by stating that “[t]his is the area where the most serious injuries occur”. Additionally, the manual provides that “[counselor supervision must be totally active” and that “[y]our full attention must be on the children using the equipment,” since “without proper supervision, this area can be the cause of needless accidents”. The program director also testified that allowing the children to run while playing tag on the playground equipment posed a safety risk to the children, but that they were not “allowed to run on there”. However, another counselor who was present that day, testified that the tag games were a regular playground activity at the Park and that the children ran and chased each other as part of the game.
“Given this proof and the fact that the accident occurred on a playground, ‘a place where close supervision of the children is all but mandatory’, the Court at bar “cannot find as a matter of law that” ‘[t]he presence or absence of supervision was not a contributory factor in the happening of the accident'”.
Lastly, in light of the plaintiff’s age and experience, it cannot determined as a matter of law at this juncture that he was fully aware of and appreciated the risks involved in the activity in which he was engaged.
Summary judgment is a drastic remedy which may be granted only where there is no clear triable issue of fact.
The Court has considered Crestwood’s remaining contentions and concludes that they are lacking in merit.
Accordingly, it is, ORDERED that motion for summary judgment pursuant to CPLR 3212 by the defendants the County of Nassau and the Crestwood County Day School, is granted to the extent that the complaint is dismissed insofar as interposed against the County of Nassau, and the motion is otherwise denied.
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