Practice point: In this action alleging negligent supervision in a gym class, the Appellate Division reversed Supreme Court and found that defendants established prima facie entitlement to summary judgment dismissing the action against them. Plaintiffs failed to raise a triable issue of fact to refute defendants' evidence that the infant plaintiff, a seventh grade student, was instructed and shown how to properly navigate the obstacle course in question, which included a two-foot high hurdle. Plaintiff was injured when, after successfully jumping over the hurdle, he suffered a fracture of his right knee upon landing. There was no evidence offered to substantiate the claim that the wooden gym floor was slippery, or that a matted landing area was warranted. Defendants' unrefuted evidence demonstrated that the other students navigated the hurdle without incident, and that there was no known history of injuries occurring in connection with the obstacle course, which the gym teachers regularly used. Moreover, infant plaintiff's two gym teachers jointly observed only half a class at a time, as the boys and then the girls of each class attempted the obstacle course. Plaintiffs offered no evidence, aside from speculation, that plaintiff's injury could have been avoided by having a spotter alongside the hurdle, or a mat on the landing side of the hurdle.
Student note: The Appellate Division noted that dismissal as to the City is required, in any event, as it is not a proper party.
Case: Luis S. v. City of New York, NY Slip Op 06022 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Vacating a default as a matter of law.