In our article written last April entitled "NY Court Holds Child's Risky Behavior Doesn't Bar School Negligence Claim," we took the opportunity to discuss a signficant decision from New York's highest State court on the issue of school negligence, which falls under the legal rubric of "negligent supervision."

From a series of recent decisions on the issue of school negligence (see, e.g., "NY Appeals Court: Assumption of Risk Doesn't Apply to Rollerblading on Sidewalk"), and how it dovetails with a student's assumption of the risks inherent in various physical activities, it seems clear that New York's courts are reluctant to dismiss these cases as a mater of law, presumably out of a concern of running afoul of the Court of Appeals' opinion in Trupia.

In a decision earlier today (March 10) in the school negligence case of Simmons v. Saugerties Cent. School Dist., another appellate court followed suit. In this case, the plaintiff-student was injured when he stepped into a deep hole that was near the bus circle - an area where students gathered to board the buses, while in the middle of playing a touch football game with some fellow students.

Although you might be inclined to think that the court should have dismissed the case on the grounds that the student "played at his own risk," the appeals court in this case saw it differently, holding:

"Risks inherent in a sport generally include "those . . . associated with the construction of the playing surface and any open and obvious condition on it" (Lincoln v Canastota Cent. School Dist., 53 AD3d 851, 852 [2008] [internal quotation marks and citations omitted]; accord McGrath v Shenendehowa Cent. School Dist., 76 AD3d 755, 756 [2010]; see Maddox v City of New York, 66 NY2d 270, 277 [1985]).

"Contrary to defendant's argument, the open and obvious nature of the large hole in the bus circle and plaintiff's allegedly long-standing knowledge of it does not bar inquiry into whether the allegedly dangerous condition resulted from defendant's negligent maintenance of its property (see Sykes v County of Erie, 94 NY2d at 913; Morgan v State of New York, 90 NY2d at 482, 488). Defendant misapprehends the scope of the primary assumption of risk doctrine in arguing that a voluntary participant in a sport or recreational activity consents to all defects in a playing field so long as the defects are either known to the plaintiff or open and obvious. The doctrine, as defined by the Court of Appeals, does not extend so far ... As that Court has emphasized, "[o]ur precedents do not go so far as to exculpate sporting facility owners of [the] ordinary type of alleged negligence" of failure to maintain their premises in good repair (id. at 488-489) ...

"[T]here are questions of fact regarding whether defendant's negligent maintenance of the bus circle "created a dangerous condition over and above the usual dangers that are inherent in the sport" of touch football."

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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