A New York state court judge has dismissed the personal injury claim of a high school student, who alleged that a physical education teacher’s participation in a game of field hockey contributed to injuries he suffered. In so ruling, the court found specifically that the teacher did not expose the plaintiff “to an unreasonable risk of harm.”
The injury occurred when Otis R. Scerbo (the teacher) struck Pedro Godoy’s right hand with his hockey stock as he was attempting to shoot the ball into the goal. In the complaint, Godoy alleged that the defendants (Scerbo and Central Islip Union Free School District) “negligently supervised the physical education class in allowing an adult teacher to participate in the floor hockey game, and in failing to provide adequate protective equipment for the students.”
The defendants moved for summary judgment on the grounds that they did not breach any duty to the plaintiff by allowing Scerbo to participate in the hockey game, and that the plaintiff has failed to submit any admissible evidence that the district was negligent for the failure to provide protective equipment.
In its analysis, the court noted that when a student “is voluntarily involved in an extracurricular sport, the school district owes a lesser duty to ‘exercise ordinary reasonable care to protect student[s] . . . from unassumed, concealed, or unreasonably increased risks’ (Lomonico v Massapequa Pub. Schools, 84 AD3d 1033, 923 N.Y.S.2d 631 [2d Dept 2011], citing Benitez v New York City Bd. of Educ., 73 NY2d 650, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989])
“However, here the record reveals that the plaintiff was participating in a compulsory physical education class. It is well settled that ‘schools 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’ (Mirand v City of New York, 84 NY2d 44, 49, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994]). Generally, the duty owed by a school district is to exercise the same degree of care that a ‘parent of ordinary prudence would observe in comparable circumstances’ (Mirand v City of New York, id., quoting Hoose v Drumm, 281 NY 54, 22 N.E.2d 233 [1939]; Benitez v New York City Bd. of Educ., supra; Lomonico v Massapequa Pub. Schools, supra).
“Even applying this more exacting duty of care, the participation of a teacher in an athletic activity is not a violation of the duty of supervision if his or her conduct does not expose the student to any unreasonable risks (Hamill v Town of Southampton, 261 AD2d 361, 689 N.Y.S.2d 196 [2d Dept 1999]). The plaintiff’s claim that Scerbo’s participation in the game of floor hockey exposed the plaintiff to an unreasonable risk of harm is completely and utterly unsupported by even a scintilla of admissible proof. The plaintiff offers only utter speculation and conjecture whether Scerbo’s participation resulted in the inadequate supervision of the students or whether his participation allowed or caused the plaintiff to be exposed to an unreasonable risk of harm. Indeed, the uncontroverted evidence is directly to the contrary. The mechanism of injury in the case at bar is no different than that of the now legion of cases here in the Second Department absolving a School District for liability where the injury causing incident occurs near spontaneously and without any opportunity to intercede to prevent same no matter how diligent and focused the supervision, and the court cites as one example those cases involving a child’s sudden fall from ‘monkey bar’ apparatus at a playground; but there are also cases directly on point involving injuries caused by the sudden swing of a hockey stick (see, Bramswig v. Pleasantville Middle School, 68 AD3d 1035, 891 N.Y.S.2d 160 [Second Department, 2009]; Spaulding v. Chenango Centr. School Dist., 68 AD3d 1227, 890 N.Y.S.2d 162 [Third Department, 2009]). So too, in the case at bar, it is uncontroverted that the plaintiff’s hand was suddenly struck when he attempted to block a shot. There is absolutely no evidence whatsoever raising any issue of fact that the teacher’s participation in the game and more particularly his taking of the shot that led to plaintiff’s injury was in any way negligent conduct on the teacher’s part or a result of a superior skill set of the teacher wherein it could be said that the teacher should not have participated in the game or could have prevented this sudden and unanticipated occurrence had he been supervising rather than playing or any other basis upon which to conclude negligence. The record shows only that it was a shot taken as any player would take whether teacher or student. A motion for summary judgment cannot be denied on the basis of wholly unsupported conjecture.
“Similarly unsupported and without merit is the plaintiff’s claim that the defendants failed to provide adequate protective equipment to the students. Accordingly, the defendants’ motion for summary judgment is granted, and the complaint dismissed.”
Pedro Godoy v. Central Islip Union Free School District and Otis R. Scerbo; S.Ct.N.Y., Suffolk Co.; 09-48348, 950 N.Y.S.2d 693; 2012 N.Y. Misc. LEXIS 4240; 2012 NY Slip Op 22244; 9/6/12
Attorneys of Record: (for plaintiff) Keegan & Keegan, Ross & Rosner, LLP, Patchogue, New York. (for defendants) Ahmuty, Demers & Mcmanus, Esqs, Albertson, New York.
