Cody v. Massapequa Union Free School District No. 23

227 A.D.2d 368, 642 N.Y.S.2d 329, 1996 N.Y. App. Div. LEXIS 4946

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1996
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., Massapequa Union Free School District No. 23 appeals from (1) so much of an order of the Supreme Court, Nassau County (DiNoto, J.), entered February 10, 1995, as denied the branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as it is asserted against it, and (2) an order of the same court, entered June 14, 1995, which denied its motion for reargument.

Ordered that the appeal from the order entered June 14, 1995, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order entered February 10, 1995, is affirmed insofar as appealed from; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

On January 11, 1994, the 17-year-old plaintiff . Meggin Cody was allegedly injured while participating in a cheerleading event. According to the injured plaintiff, the accident occurred when two cheerleaders attempted to lift her into the air and she fell backwards.. The injured plaintiff had previously performed this maneuver with a spotter and asked for a spotter on the night of the accident, but was informed that none could be provided because there were not enough cheerleaders present.

In opposition to the appellant’s motion for summary judgment, the plaintiffs submitted an affidavit by an expert that spotters should be provided for partner and pyramid stunts, that the teacher in charge of the cheerleading squad failed to provide proper supervision by allowing the injured plaintiff to perform without a spotter, and that her "injury could and, in all probability, would have been prevented if proper spotting had been provided”.

The injured plaintiff voluntarily participated in cheerleading and therefore assumed the risks to which her role exposed her but not risks which were "unreasonably increased” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658). "[A] school district remains under a duty to 'exercise ordinary reasonable care to protect student athletes involved in extracurricular sports from * * * unreasonably increased risks’ ” (Baker v Briar-cliff School Dist., 205 AD2d 652, 655, quoting Benitez v New York City Bd. of Educ., supra, at 658). In Baker v Briarcliff School Dist., (supra, at 655), the injured plaintiff’s failure to wear a mouthpiece during hockey practice, although she had it with her and was aware of the requirement that it be worn, did not warrant summary judgment in favor of the defendants, since there were "questions of fact regarding whether the coach adequately warned the players about the risks involved in not wearing a mouthpiece, and whether reasonable care was exercised in the supervision”. Similarly, in the instant case, there are issues of fact as to whether the teacher in charge of the cheerleading squad failed to provide proper supervision by permitting the injured plaintiff to perform without a spotter. Sullivan, Copertino and Goldstein, JJ., concur.