Munson v. Board of Education of Central School District No. 1

17 A.D.2d 687, 230 N.Y.S.2d 919, 1962 N.Y. App. Div. LEXIS 8468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 26, 1962
• Status: Published

Opinions

Appeal from a judgment entered upon the verdict of a jury rendered at a Trial Term, Supreme Court, Essex County.

Memorandum by the Court. Plaintiff was injured while using an ice slide on a slope on the school premises of defendant Board of Education when a fellow pupil grabbed at him causing him to lose his balance and fall. He was then 12 and one-half years old. He testified he had gone down the slide “ about ten or twelve times ” before the fellow pupil caused his fall. A judgment has been entered in favor of plaintiff after trial. We are of opinion a ease has not been made out against defendants. The slide was on snow and ice about 30 feet long and “ fairly steep ”, but there was no proof that the slide, made on the bank of ice and snow by the children themselves, was a dangerous “ defect ” in the premises. There is no proof of prior injuries occurring in use of the slide; nor any proof that the slide on which plaintiff was injured was inherently dangerous. Slides on ice and snow have always been used by children wherever there has been ice and snow.

Thus this case is not governed by the rule in Miller v. Board of Educ. (291 N. Y. 25), which rested on a defect in a school building; or by Decker v. Dundee Cent. School Dist. (4 N Y 2d 462), where a practice obviously dangerous (jumping from a five-foot tier) was itself the cause of injury. Nor is it governed by Selleck v. Board of Educ. (276 App. Div. 263) where bicycle driven on the school premises when pupils were waiting for busses was found both to be dangerous and itself to have been the cause of plaintiff’s injury.

Here the unexpected intervention of the fellow pupil caused plaintiff to lose his balance and was the direct cause of the injury. This sort of causation has been held in a number of school eases not to create a liability against the school board. One of the leading authorities in this direction is Ohman v. Board of Educ. (300 N. Y. 306) where a lead pencil thrown by another pupil while a teacher was temporarily out of a classroom was held no basis for liability. Of this accident the court said it was “ the act of an intervening third party which ■* * * could hardly have been anticipated” (p. 309). Due consideration was there given by the court to the possibility that the pupil who threw the pencil might have acted, as children sometimes do, “ mischievously and heedlessly or wantonly and wilfully”. In the same direction are Pollard v. Board of Educ. (280 App. Div. 1033); May v. Board of Educ. (269 App. Div. 959); Wilber v. City of Binghamton (271 App. Div. 402); Bertolla v. Board of Educ. (1 A D 2d 973) and Coulter v. Roman Catholic Church of St. Ignatius (16 A D 2d 653).

Liability in Germond V. Board of Educ. (10 A D 2d 139) was sustained where the very danger which should have been foreseen, the playing of softball by older pupils near a group of young children, was itself the cause of injury and occurred in the presence of a teacher.

The judgment should be reversed on the law and complaint dismissed, without costs.