A New York state judge has dismissed a negligence claim brought by the mother of a sixth grader, after her son suffered a concussion during a physical education class, while executing the butterfly stroke.
In so ruling, the court found that “the accident was outside the practical ability of the district to prevent even in the exercise of highly intensive.”
The incident in question occurred on January 12, 2010, as 11-year-old Stephen J. Rinaldo, Jr. was participating in a class at Casey Middle School, which is part of the Williamsville Central School District.
The instructional exercise, in which the plaintiff participated along with his classmates, centered on the basic movement of the butterfly stroke. “The students were thus instructed to swim the width of the pool with their arms at their sides, while kicking through the water with flippers and bobbing their heads and upper torsos up and down in an undulating manner,” wrote the court.
The plaintiff successfully completed his first four passes of the pool without incident. On the fifth pass, the plaintiff, who was swimming with his eyes closed, struck his face on the far wall of the pool, sustaining a compound fracture of his nose and allegedly a concussion, “which caused him to experience headaches for a few weeks, but no residual brain injury,” according to the court.
The plaintiff was swimming with his eyes closed, allegedly because of the sensitivity of his eyes to chlorine.
“It is undisputed, however, that although the students were not required to wear goggles in the pool, such goggles were made available to the students by defendant,” wrote the court. “Moreover, plaintiff personally owned goggles that he had brought from home into school on prior occasions and that he may in fact have had with him in school on the day of the accident.”
Regardless, the plaintiff sued, alleging that the defendant was negligent “in failing to properly supervise and monitor the plaintiff and in failing to properly instruct and warn him relative to proper swimming technique. Indeed, … the plaintiff’s primary specification of negligence against the defendants seems to be that the class instructor and monitor were negligent in failing to tell plaintiff not to swim with his eyes closed, lest he strike his face on the side of the pool.”
The defendant moved for summary judgment dismissing the complaint on the ground that the defendant “did not breach its duty of reasonable supervision and instruction of the infant plaintiff, and that its duty of reasonable care did not extend to specifically instructing or warning plaintiff not to swim with his eyes closed.”
In its analysis, the court found no merit in the plaintiff’s general allegations of lack of adequate supervision. As indicated, there were two supervisors in the pool area, the physical education teacher, who was imparting the swimming instruction to the class of 20-30 students, and a swimming coach and qualified lifeguard who served as a second set of eyes for the gym teacher during the session. Although the plaintiff faults the district for the fact that neither supervisor got into the pool with the students, the court fails to see how such measure might have been foreseeably necessary, might have prevented the accident, or would have been even desirable from the standpoint of overall swimmer safety. The plaintiff also faults the instructors for not observing the swimmers from above the far wall of the pool, where the plaintiff struck his face. However, the record demonstrates that the accident occurred not because the plaintiff had his eyes closed for some or even most of his way across the pool, but rather because (unlike on his previous forays across the pool) he failed even to peek at the wall as he neared it. The Court thus concludes that the accident was outside the practical ability of the district to prevent even in the exercise of highly intensive supervision (see Mayer v Mahopac Cent. School Dist., 29 AD3d 653, 655, 815 N.Y.S.2d 189 [2d Dept 2006]; see generally Johnson v Ken-Ton Union Free School Dist., 48 AD3d 1276, 1277-1278, 850 N.Y.S.2d 813 [4th Dept 2008]).”
The court also ruled for the defendant on the plaintiff’s claim that it “was negligent in the manner in which it instructed the students and more particularly in failing to instruct or warn or guard plaintiff against the risk of his hitting his head on the side of the pool while undulating across it without the use of his arms.”
Elaborating on this, it cited the “undisputed testimony of the gym teacher and averment of the physical education department head is that the gym teacher taught the technique as he himself had been (expertly) taught to teach it; that he had never had a student strike his or her head on the side of the pool in 24 years of such instruction; and that the plaintiff himself had repeatedly completed that drill and similar ones without mishap or apparent difficulty before the accident, including four times earlier during that very class. Based on its own common knowledge, the court notes that doing the butterfly stroke, like certain other swimming strokes, necessarily involves moving through the water without one’s arms outstretched in front of one’s head at least part of the time.”
The court further noted that “the instructors had no inkling that the plaintiff was swimming with his eyes closed, and swim goggles were made available for the students’ use in the pool. Moreover, the plaintiff had swum across the pool before, including repeatedly on the day of the incident, and thus had to have been aware of the dimensions of the pool and the location of its edge. It is well established that a defendant is not chargeable with negligence for allegedly failing to warn a plaintiff against a premises danger or condition (the Court surely cannot label the condition of the side of the pool as a ‘defect’) that is open and obvious, readily discernible, or otherwise known to or reasonably to be appreciated by the plaintiff (see Tagle v Jakob, 97 NY2d 165, 169, 763 N.E.2d 107, 737 N.Y.S.2d 331 [2001]; Cimino v Town of Hempstead, 66 NY2d 709, 487 N.E.2d 282, 496 N.Y.S.2d 425 [1985], affg without opn 110 AD2d 805, 805-806, 488 N.Y.S.2d 68 [2d Dept 1985]; Cramer v County of Erie, 23 AD3d 1145, 1146, 804
N.Y.S.2d 201 [4th Dept 2005]; Bush v Brentwood Veterans War Memorial, Inc., 302 AD2d 546, 547, 755 N.Y.S.2d 99 [2d Dept 2003]; Duclos v County of Monroe, 258 AD2d 925, 926, 685 N.Y.S.2d 549 [4th Dept 1999]; Tushaj v City of New York, 258 AD2d 283, 284, 685 N.Y.S.2d 64 [2d Dept 1999], lv denied 93 NY2d 818, 719 N.E.2d 927, 697 N.Y.S.2d 566 [1999]; Coote v Niagara Mohawk Power Corp., 234 AD2d 907, 909, 651 N.Y.S.2d 799 [4th Dept 1996]; Plate v City of Rochester, 217 AD2d 984, 629 N.Y.S.2d 600 [4th Dept 1995], lv denied 87 NY2d 801, 661 N.E.2d 160, 637 N.Y.S.2d 688 [1995]); see also Barry v Gorecki, 38 AD3d 1213, 1215, 833 N.Y.S.2d 329 [4th Dept 2007], rearg denied 42 AD3d 975, 838 N.Y.S.2d 457, [4th Dept 2007]). On that basis, the Court concludes that the instructors could be no more duty-bound to warn a student to swim only with his eyes open, lest he strike his head against the side of the pool, then they would be duty-bound to specifically tell a student to keep his eyes unblinkingly open as he walked around the school, lest he trip over or bump into something.”
Susan L. Rinaldo, as Parent and Natural Guardian of Stephen J. Rinaldo, JR., Plaintiff, against Williamsville Central School District and Casey Middle School; S. Ct. N.Y.; Erie Co..; 2011/1640, 35 Misc. 3d 1232A; 2012 N.Y. Misc. LEXIS 2532; 2012 NY Slip Op 50969U; 5/30/12
Attorneys of record: (for plaintiffs) Theresa M. Walsh. (for defendants) Paul J. Suozzi.
