Barretto v. City of New York

229 A.D.2d 214, 655 N.Y.S.2d 484, 1997 N.Y. App. Div. LEXIS 2949
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 1, 1997
StatusPublished
Cited by17 cases

This text of 229 A.D.2d 214 (Barretto v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barretto v. City of New York, 229 A.D.2d 214, 655 N.Y.S.2d 484, 1997 N.Y. App. Div. LEXIS 2949 (N.Y. Ct. App. 1997).

Opinion

OPINION OF THE COURT

Sullivan, J. P.

The New York City Board of Education appeals from a judgment awarding damages to plaintiff, an 181/2-year-old high school senior and member of the school’s volleyball team, who, on April 12, 1988, injured his spine and suffered paralysis from the chest down when, in the coach’s absence, during an equipment setup prior to the start of practice, he attempted a gymnastic dive over a half-raised volleyball net onto a mat, landing, not on his hands, as he intended, but on his head. The revised judgment awarded plaintiff approximately $15,000,000 in damages, past and future, after a verdict finding the Board 80% and plaintiff 20% responsible for causing the injury.

The trial evidence shows the following. Sometime after the March 1, 1988 start of the spring season, plaintiff, who had previously played volleyball in the Dominican Republic, where he was born, as well as in the regular gym class, joined the extracurricular, after-school varsity volleyball team at Richmond Hill High School. He did so after signing a consent form acknowledging his understanding that the Board would "not assume responsibility should an accident occur * * * during participation in any phase of the athletic program.” According to plaintiff, although advised by the coach to be punctual and dressed properly, he was never given instructions as to proper gymnasium behavior. Plaintiff took part in his first practice session with the team on March 21, 1988.

On the day of the accident, at about 3:30 p.m., plaintiff and Pedro Russo, as well as five or six other members of the 10-man team, assembled outside the gym. The coach arrived sometime after 3:30 p.m. and unlocked the gym and locker room on the floor below. After the players had changed, the [216]*216coach unlocked the gym closet containing the volleyball equipment, including two poles and a net, and, placing the team captains in charge, told the players to put up the net. The coach then left, either to change his clothes, as one of the players testified, or, as he testified, to find volleyballs. Before leaving, he warned the players "not to horse around with the volleyballs”.

Some of the players, including plaintiff and Russo, then set up the net. After screwing the poles into the holes in the floor and attaching cables from the poles to the floor to secure the poles, they put the cables from the net through hoops on the poles, attached them to the cranking mechanism and began to crank up the net. When the net was one-half raised, they stopped cranking. At that point, the top of the net at its lowest point was three or four feet off the ground.

While the other team members were either sitting or playing with the volleyballs, Russo, who had gone to the back of the gym with a ball, ran, from a distance of 30 or 40 feet, toward the net, intending to jump over it. When he reached the net, however, he stopped, explaining, "Something told me not to jump, so I stopped right there.” Plaintiff volunteered, "I can do it.” He then brought over gym mats from the side of the gym and placed them under the net. Plaintiff conceded that he had never seen a mat under a volleyball net; nor had he ever observed anyone attempt to dive over one. Several team members warned plaintiff against jumping over the net. A teammate, Cruz, yelled at both plaintiff and Russo to stop "fooling around”, but they "didn’t mind him”. Russo also tried to stop plaintiff, but as he explained later, "[I]t was too late, when I saw him, he already was [lying] on the other side of the net.”

Plaintiff, from a distance of 30 to 35 feet, ran. toward the net and jumped head first so that he "could land on [his] hands and roll on top of the mat.” Instead, he caught his waist on the top of the net, and, unable to grab the net when he tried, landed on his head after the cable gave and his feet flipped upwards. Plaintiff had never attempted such a dive in any high school gym class; he had, however, performed such a maneuver when he was nine or ten years old and enrolled in a karate class in the Dominican Republic. When he performed the dive there, it was not over a volleyball net but usually over a barrel or over other students. In those instances, his karate teacher acted as a "spotter” to assure that "you wouldn’t hit your head or something like that with the floor.”

The school’s assistant athletic director was the first adult to respond to the accident, followed, a few minutes later, by the [217]*217coach. The police were called at 3:53 p.m.; an ambulance was dispatched at 4:02 p.m. Both plaintiff and Russo estimated the time of the coach’s absence as about 20 minutes. The coach, a certified foreign language teacher, had coached during the previous school year. At the time he was hired to coach, the assistant athletic director gave him some printed materials and he met with the school’s athletic director. He had, before 1988, supervised athletic activities involving younger students in two prior positions, serving for four years as athletic director at one school.

No specific license or other designation was required for supervisors of after-school athletic activities. Nor did the Board have specified rules and regulations for coaches or for the supervision of such activities. The proper supervision at athletic events and practice is, of course, included within the responsibilities of a public high school athletic coach, who is required to complete two coaching courses within three years of becoming a coach. Plaintiffs volleyball coach had completed the first aid course required of all high school coaches. He was compensated for a maximum of 32 hours per month of after-school volleyball coaching, including two-hour practice and four-hour game sessions.

The coach had warned the new team members, including plaintiff, not to play around in the gym and to observe safety rules. He told them "not [to] do anything else, just play volleyball, and that’s all.” It was his custom to have four members of the team, with the captains in charge, set up the equipment at every practice session. He had never instructed the players in any way with regard to jumping or diving over the net and had never observed a player attempt such a feat. He testified that he did not have disciplinary problems with the team and never saw them roughhousing. The only injury to a team member that he could recall was a pulled muscle during a spring 1987 game.

The school’s assistant athletic director had given the new coaches, including the coach involved here, handouts, one of which, entitled "A 23-Point Defensive Game Plan for Lawsuit-Conscious Athletic Directors/Coaches”, included a list of the varying situations that might cause accidents. In the assistant athletic director’s view, the standard of supervision for coaches was the same as that of a teacher. In his words, a coach should be present "at the activity” and "never leave a class unattended.” Plaintiff presented an expert in "physical education supervision”, who testified that leaving high school athletes [218]*218unsupervised in their activities for 5 to 15 minutes was unacceptable and unreasonable. The Board’s motion to dismiss for failure to make out a prima facie case, made at the conclusion of plaintiffs case, was denied.

A unanimous verdict of liability was returned, the jury apportioning fault, as noted, against the Board and plaintiff. A second jury was empaneled and, after hearing testimony on damages, awarded plaintiff $18,834,000 which, after offsets for plaintiff’s 20% fault and the receipt of disability payments, was reduced to $14,904,145.

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Bluebook (online)
229 A.D.2d 214, 655 N.Y.S.2d 484, 1997 N.Y. App. Div. LEXIS 2949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barretto-v-city-of-new-york-nyappdiv-1997.