         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
980
CA 11-00507
PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.


RONALD DWORZANSKI, INDIVIDUALLY AND AS PARENT
AND NATURAL GUARDIAN OF JUSTIN DWORZANSKI,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NIAGARA-WHEATFIELD CENTRAL SCHOOL DISTRICT,
DEFENDANT-APPELLANT-RESPONDENT.


HURWITZ & FINE, P.C., BUFFALO (JODY E. BRIANDI OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

MURA & STORM, PLLC, BUFFALO (ERIC T. BORON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Niagara County (Ralph A. Boniello, III, J.), entered June 17, 2010 in
a personal injury action. The order granted in part defendant’s
motion for summary judgment and denied plaintiff’s cross motion for
partial summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying defendant’s motion in its entirety and
reinstating the third cause of action, for negligent supervision, and
as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action, individually and on
behalf of his son, a third-grade student at defendant’s elementary
school who was injured while walking by playground equipment known as
a “slide pole” during a school recess period. The injury allegedly
occurred when another student slid down the slide pole and landed on
him. At the time of the injury, four third-grade classes, including
the class of plaintiff’s son, were using the school playground, and
the classes were being supervised by the classroom teachers.

     In the complaint, plaintiff alleged that defendant was negligent
in failing to provide proper instruction to the students in their use
of the playground equipment, specifically the fireman’s pole,
negligent in failing to provide adequate groundcover around the
playground generally, negligent in failing to provide adequate
supervision of the playground, and negligent in failing to provide a
proper surface beneath the fireman’s pole. Defendant moved for
summary judgment dismissing the complaint, asserting that it was not
negligent in its supervision of the students and that, even if it was,
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                                                         CA 11-00507

any negligence on its part was not a proximate cause of the accident.
Defendant further asserted that any negligence in maintaining the
playground surface also was not a proximate cause of the accident.
Plaintiff cross-moved for partial summary judgment on the issue of
liability. Supreme Court granted defendant’s motion in part,
dismissing the third cause of action, for negligent supervision, and
the court denied the cross motion. We conclude that the court should
have denied defendant’s motion in its entirety, and we therefore
modify the order accordingly.

     Although school districts are not insurers of the safety of their
students, they have a duty to provide adequate supervision for them
and will be held liable when students sustain foreseeable injuries
proximately related to the school district’s breach of that duty (see
Mirand v City of New York, 84 NY2d 44, 49; Doxtader v Middle Country
Cent. School Dist. at Centereach, 81 AD3d 685, 685-686). “In carrying
out that duty, [school districts] are obligated to exercise such care
of their students as a parent of ordinary prudence would observe in
comparable circumstances” (Milbrand v Kenmore-Town of Tonawanda Union
Free School Dist., 49 AD3d 1341, 1342; see David v County of Suffolk,
1 NY3d 525). Further, school districts “ ‘cannot reasonably be
expected to continuously supervise and control all movements and
activities of students’ ” (Walker v City of New York, 82 AD3d 966,
967, quoting Mirand, 84 NY2d at 49). Indeed, “ ‘[w]here an accident
occurs in so short a span of time that even the most intense
supervision could not have prevented it, any lack of supervision is
not [a] proximate cause of the injury’ ” (Swan v Town of Brookhaven,
32 AD3d 1012, 1013-1014).

     Here, defendant met its initial burden by establishing that its
supervision of the playground was adequate and that plaintiff’s son
was engaged in “normal play” at the time of the accident (Walker, 82
AD3d at 967; see Troiani v White Plains City School Dist., 64 AD3d
701). In opposition, however, plaintiff raised an issue of fact
whether his son was injured as a result of a game of “tag,” a game
that was in violation of playground rules and that nevertheless was
frequently played by the students during recess despite defendant’s
notice thereof (see Vonungern v Morris Cent. School, 240 AD2d 926,
927). Persistent rule breaking may serve as a basis for liability,
particularly where school personnel fail to address the students’
rule-breaking behavior and that failure foreseeably leads to injury
(see generally Oliverio v Lawrence Pub. Schools, 23 AD3d 633, 635;
Rivera v Board of Educ. of City of Yonkers, 19 AD3d 394). Thus,
contrary to plaintiff’s contention on his cross appeal, the court also
properly denied his cross motion for partial summary judgment on
liability inasmuch as he raised an issue of fact with respect thereto.

     We reject defendant’s contention that the court erred in denying
those parts of its motion with respect to the first and fifth causes
of action inasmuch as they essentially allege negligent supervision
based upon the failure to instruct students in the proper use of the
playground equipment. A school district has a duty to provide
adequate instructions to the students in its care and will be held
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                                                         CA 11-00507

liable for foreseeable injuries proximately caused by its negligence
(see Oakes v Massena Cent. School Dist., 19 AD3d 981, 981-982; Darrow
v West Genesee Cent. School Dist., 41 AD2d 897; PJI 2:227). While
defendant established that it provided students with some instruction
concerning the use of the playground equipment, we cannot say on this
record that defendant’s instructions were reasonable as a matter of
law (see generally Ugarriza v Schmieder, 46 NY2d 471, 475-476; Merkley
v Palmyra-Macedon Cent. School Dist., 130 AD2d 937, 938). Finally,
although defendant contends that the condition and depth of the
playground groundcover was not a proximate cause of the accident and
thus that the court also erred in denying its motion with respect to
those causes of action concerning the groundcover, the parties have
submitted conflicting expert evidence on that issue, thus precluding
summary judgment (see Smith v Kinsey, 50 AD3d 1456, 1458).

     All concur except SMITH, J.P., who dissents in part and votes to
affirm in the following Memorandum: Although I agree with the
majority that defendant school district “met its initial burden by
establishing that its supervision of the playground was adequate and
that plaintiff’s son was engaged in ‘normal play’ at the time of the
accident,” I respectfully disagree with the majority’s further
conclusion that plaintiff raised a triable issue of fact in
opposition. Consequently, I dissent in part and would affirm the
order, inasmuch as I conclude that Supreme Court properly granted that
part of defendant’s motion for summary judgment dismissing the third
cause of action, for negligent supervision, but I otherwise agree with
the remainder of the majority’s decision.

     In supervising students, schools are “obligated to exercise such
care of their students ‘as a parent of ordinary prudence would observe
in comparable circumstances’ ” (David v County of Suffolk, 1 NY3d 525,
526). “Schools are not insurers of safety, however, for they cannot
reasonably be expected to continuously supervise and control all
movements and activities of students; therefore, schools are not to be
held liable ‘for every thoughtless or careless act by which one pupil
may injure another’ ” (Mirand v City of New York, 84 NY2d 44, 49).
Thus, “ ‘[w]here an accident occurs in so short a span of time that
even the most intense supervision could not have prevented it, any
lack of supervision is not [a] proximate cause of the injury’ ” (Swan
v Town of Brookhaven, 32 AD3d 1012, 1013-1014).

     Here, a fellow student suddenly slid down a pole and struck
plaintiff’s son within five minutes of the beginning of the recess
period. Two teachers were present on the playground, one of whom was
within 10 to 15 feet of plaintiff’s son when the accident occurred.
Consequently, I conclude that the other student’s action was a sudden
and unforeseen event that no amount of supervision could have
prevented (cf. Oliverio v Lawrence Pub. Schools, 23 AD3d 633, 635).
“In order to find that a school has breached its duty to provide
adequate supervision in the context of injuries caused by the acts of
fellow students, the plaintiff must show that the school ‘had
sufficiently specific knowledge or notice of the dangerous conduct
which caused injury; that is, that the third-party acts could
reasonably have been anticipated’ ” (Convey v City of Rye School
                                 -4-                           980
                                                         CA 11-00507

Dist., 271 AD2d 154, 159, quoting Mirand, 84 NY2d at 49). Defendant
established that it had no knowledge of any prior dangerous behavior
on the part of the other student, and thus I agree with the majority’s
conclusion that defendant met its initial burden on the motion.

     I cannot agree with the majority, however, that plaintiff raised
a triable issue of fact by presenting evidence that the other student
was playing tag on the playground, which was against defendant’s
rules. Although a child’s violation of a school rule that prohibits
certain conduct may raise a triable issue of fact with respect to
negligent supervision (see generally Rivera v Board of Educ. of City
of Yonkers, 19 AD3d 394), in the case before us there is no evidence
that the injury sustained by plaintiff’s son was the result of a
violation of the rule against playing tag (cf. Hochreiter v Diocese of
Buffalo, 309 AD2d 1216, 1217-1218).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
