LEEDS v. New York, #2000-013-504, Claim No. 88391
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
PHILIP J. PATTI
PAUL MORTON, ESQ.
BY: JULIAN & PERTZ, P. C., Of Counsel ROBERT F. JULIAN, ESQ.
Attorney General of the State of New York
BY: PATRICIA M. BORDONARO, ESQ. Assistant Attorney General
April 5, 2000
See also (multicaptioned
On September 13, 1993, a ten-year-old boy named Billy Brown accidently struck
Claimant's nose and broke it with a wiffle ball bat. At the time, Claimant was
a junior majoring in physical education at the State University of New York at
Cortland (Cortland). She was participating in a class called Physical Education
for the Exceptional Child (PE 336) to learn how to teach "adaptive physical
education" to children who have physical, mental or emotional
In her timely filed claim, Claimant contends that the State of New York
negligently caused her injuries by (1) permitting the gym where the accident
occurred to become too crowded; (2) providing inadequate supervision; and, (3)
failing to confine striking activities like wiffle ball to a corner of the
gymnasium. Defendant denies that it was negligent and asserts that the claim is
barred by the doctrine of primary assumption of the risk.
This decision follows a two-day trial on the issue of liability. At the trial,
Claimant offered her own testimony and the expert testimony of Mr. Joseph
, a special education teacher who coaches baseball, runs baseball camps and
holds a bachelor's degree in physical education and a graduate degree in special
Defendant called four fact witnesses: (1) Mr. Carl Normandin, a secondary
school physical education teacher who was the lab instructor for PE 336; (2) Mr.
Michael Smith, an adaptive physical education teacher at
Onondaga-Cortland-Madison Boces who assists in PE 336; (3) Mr. Mark Agnello, an
elementary school physical education teacher who was working as a graduate
teaching assistant in PE 336 at the time of the incident; and (4) Dr. Diane
Craft, a professor in the Department of Physical Education at Cortland, who was
the class lecturer for PE 336 when Claimant took the course. Defendant also
relied upon the expert testimony of Dr. Ronald
a professor in adapted physical education at Ball State University, who holds a
bachelor's degree in physical education, a master's degree in special physical
education and a Ph.D in physical education.
The class that Claimant was taking, PE 336, had two components -- a classroom
lecture and a lab. In the lab, Cortland undergraduates were paired with
children from Onondaga-Cortland-Madison BOCES with whom they would work in a
pool or gym setting throughout the semester. Claimant had been paired with a
six-year-old girl named Jessica King for "dry land" physical education. King
has cerebral palsy and spends most of her time in a wheelchair. The BOCES child
who struck Claimant's nose, Billy Brown, had been assigned to an undergraduate
named Stacy Hayden. He had normal, but perhaps immature, motor skills, and
witnesses who knew him described him emotionally disturbed.
The accident occurred during the first lab session of the year. The Cortland
undergraduates' assignment that day was to observe the children with whom they
had been paired in various types of developmentally appropriate physical
activity and to make an initial assessment of their motor skills.
Claimant was the only person who provided a description of the events leading
up to her accident. She testified that she met King at the school bus and
escorted her to Room 305, a gymnasium that measures about 60 feet wide and about
111-122 feet long. They entered the gym through the doorway located in the
lower right corner of the room.
Other undergraduates and their BOCES students had already arrived at the gym and
had begun working on the assignment. Along the long right wall, Claimant saw
about eight pairs of undergraduates and BOCES children. There was an additional
pair directly to the left of the entrance and another pair working along the far
wall near the upper right corner (see,
"BS" markings on Exhibit
Since King was a "fragile case," Claimant decided to work with her on the left
side of the gym, which was then "vacant." She wheeled her along the lower wall
of the gym to an exit located in the lower left
There, she helped King out of her wheelchair and the two began to walk slowly
along the long left wall of the gym toward the far wall. Claimant held King's
right hand in her own left hand and positioned King between her body and the
left wall. Claimant testified that she was watching King and what was ahead of
her as the two started walking. She saw no one around
After they had taken a few slow steps, Claimant glanced over her right shoulder
and was struck in the nose by Brown's swing of his wiffle ball bat. When
Claimant recovered from the momentary shock of being hit, she noticed that she
was bleeding. Stacy Hayden helped her to the training room to receive first
aid. Later, campus security escorted her from the training room to a university
nurse who gave her ice to relieve the swelling. When it became apparent that
she might have something more serious than a bloody nose, Claimant and a friend
drove to a Cortland hospital. The following day, Claimant flew to New York City
and had her nose repaired by a plastic surgeon.
Claimant asserts that Defendant is responsible for her injuries because it let
the gymnasium become too crowded.
An educational institution like Cortland has a duty to exercise care to prevent
dangerous overcrowding conditions in its gymnasiums (
see, Bauer v Bd. of Education of the City of New York
AD 1148). If it breaches that duty, it may be held liable for injuries that are
proximately caused by its negligence
Four witnesses offered varying recollections regarding the number of pairs of
undergraduates and BOCES students who were working in the gym. Claimant
testified that there were at least 12 pairs -- the ten pairs who were working
there when she arrived, Claimant and King, and the Hayden-Brown pair who arrived
after she did. Mr. Normandin (who was not in the gym at the time) testified
that there were between five and eight pairs. Mr. Smith and Mr. Agnello placed
the total at about six pairs. Mr. Smith, however, believed that the larger gym,
Room 315, was not in use on the day in question. Based upon the lab enrollment,
Claimant argues that this may have meant that there were as many as 12 to 16
pairs in the gym.
It was clear from the proof that having 12 or more pairs in the gym was
potentially unsafe. Claimant's expert, Mr. Milazzo, opined that with 20 to 25
people in Room 305, it would have been unsafe for an undergraduate and a BOCES
student to play wiffle ball unless other precautions were taken. Dr. Craft
maintained that Room 305 could "easily accommodate" eight pairs for the
assessment activities being carried out on the day of the incident, but that 16
pairs would not have been safe. Mr. Normandin testified that walking around
Room 305 would be unsafe if there were 20 people throwing footballs and playing
basketball but that ten undergraduate-BOCES student pairs did not raise a safety
concern because the BOCES students' skills were largely undeveloped.
Defendant's expert, Dr. Davis, testified that 16 people (eight pairs) approached
the maximum safe capacity for Room 305 given the types of assessment activity
that were taking place in the room.
I find, based upon the evidence presented, that there were six to eight pairs,
including Claimant and King, in the gym at the time of the accident. In
reaching this conclusion, I have relied primarily upon the recollections of Mr.
Agnello. He was the one witness whose testimony seemed to be both credible and
disinterested. He also had particularly good reason to know how many people
were in the gym because he was taking attendance at the time of the
While I believe that all of the witnesses tried to recall accurately the number
of people who were in the gym, there were reasons to discount the testimony of
Claimant, Mr. Normandin and Mr. Smith. In Claimant's case, I felt that the
trauma of the incident and her sincere feeling that she was not adequately
protected may have affected her recall. I accorded no weight to Mr. Normandin's
account because he was in the pool area at the time of the incident and reached
his conclusions by making assumptions about the use of the larger gymnasium and
the racquetball courts. Mr. Smith, although plainly trying to be helpful, did
not convince me that he had a clear recollection of the day in question.
The proof did not establish that six to eight pairs was an unsafe capacity,
taking into account the type of students and the activities that were being
conducted in Room 305 on the date in question. Therefore, I find for the
Defendant on this part of the claim.
The result would be the same if I had found Claimant's recollections to be the
most persuasive. She made clear in her testimony that the entire right side of
the gym was empty when she and King arrived and that she did not subsequently
see anyone else take a position on that side of the room. The addition of
Hayden and Brown to the left side of the gym meant that four people were
occupying an area that was approximately 30 feet wide and more than 100 feet in
length. Under such circumstances, I cannot conclude that overcrowding caused
Claimant's second theory is that Defendant did not adequately supervise the
class. Generally, a university does not stand in the position of
to adult students and may not be held liable for failing to
supervise their activities (Talbot v New York Institute of Technology
225 AD2d 611, 612-613; Wells v Bard College
, 184 AD2d 304, lv
80 NY2d 971; Rydzynski v North Shore University Hosp.
262 AD2d 630; see also, Eiseman v State of New York
NY2d 175, 190). A duty to supervise may arise, however, in a classroom setting,
where it may be reasonable for students to expect that someone is monitoring
their progress (see, Yarborough v City University of New
, 137 Misc 2d 282, 285; Lorenzo v Monroe Community College
AD2d 945). In evaluating the scope of the duty and whether it has been met, it
is appropriate to take into account a variety of factors, including the age,
experience and abilities of the students participating in the class, which would
include, in this case, the undergraduates (Yarborough v City University of
; Rydzynski v North Shore University
; see also, Mintz v State of New
, 47 AD2d 570, 571).
The evidence regarding the degree of supervision in Room 305 on the date in
question was conflicting. Claimant said that she did not see any instructors or
graduate students prior to her accident, and that no one in a supervisory
capacity came to her assistance after the accident. Mr. Smith and Mr. Agnello,
however, each testified that they were supervising the gym at the time in
Mr. Smith created a diagram of the gymnasium about eight months after the
incident (Exhibit G) to show where he recalled standing during that class. He
placed himself midway between the right and left walls at the end where Claimant
and King entered. At trial, he thought that Mr. Agnello might have been
standing near the entry to the gymnasium taking attendance. Though Mr. Smith
should have had an excellent view from where he recalled standing, he did not
remember the Claimant-King or Hayden-Brown pairs or the accident itself. He
did, however, recall Mr. Agnello or someone else telling him that Jessica King
had been reassigned to another undergraduate for the balance of the lab. On
cross-examination, he also mentioned seeing Claimant run from the gym holding
her face -- a detail that he said first came to him on the morning of the
Mr. Agnello also testified that he was in the gym at the date and time in
question. He placed himself only a few feet from where Mr. Smith recalled
standing. Agnello remembered taking attendance, which required looking up to
identify a particular student and then looking down to his ledger to mark
whether the student was present. While taking attendance, he recalled seeing
Claimant and King at a ten or eleven o'clock position and about 60 to 70 feet
away from him. He also recalled seeing Hayden and Brown to his left, at about
an eight or nine o'clock position, approximately 12-13 feet away from
Agnello said he became aware of the accident when he heard a scream, saw
Claimant on one knee holding her face, and observed Brown standing next to
Claimant holding a bat. He recalled letting Hayden take Claimant to the
training room, cleaning up the blood on the floor and finding other
undergraduates to work with Brown and King.
Claimant argues that the testimony of Smith and Agnello is inherently
incompatible and urges me to find that neither man was in the gym at the time of
the accident. She points out that both men claimed to have been standing in
about the same place but that neither described seeing the other. She also
points out that Mr. Agnello's testimony is contradicted by Mr. Smith's belief
(also relayed to Mr. Normandin) that Mr. Agnello was in or near the doorway to
the gym taking attendance at the critical time. Claimant argues, in essence,
that I should credit that part of Mr. Smith's testimony that placed Mr. Agnello
in the doorway but reject the rest of his testimony and the testimony of Mr.
As noted above, however, I found Mr. Agnello to be a credible witness who had a
good recollection of the events. Therefore, I credited his testimony. I placed
no reliance upon the testimony of Mr. Smith or Claimant on the supervision
issue. I was not persuaded that Mr. Smith's recall was reliable. Nor is it
clear to me that Claimant would have been aware of Mr. Agnello's activities or
location either before or after the accident. She was focused first on teaching
Jessica King and later on her own injuries.
I conclude that Mr. Agnello's presence in the gymnasium provided adequate
supervision under the circumstances. He was certainly qualified by age,
education and experience. He held a bachelor's degree in physical education
with a concentration in adaptive physical education and was acting as a graduate
assistant while pursuing a master's degree. As I have found above, there were
only six to eight BOCES students in the gym at the time, and each was being
supervised by a college undergraduate. Although this was the first time that
many of the undergraduates had worked with children with special needs, the
undergraduates were adults and enrolled in an upper level course. As a
prerequisite, the undergraduates had already completed Physical Education for
the Young Child (PE 300) in which they were placed at local elementary schools
and worked with physical education classes under the tutelage of a seasoned
physical education teacher.
The fact that Mr. Agnello averted his gaze from the gym while marking his
attendance ledger cannot be considered a departure from the standard of
reasonable care. In other cases, schools have been absolved of liability as a
matter of law where the class participants were younger, there was equal or less
supervision and, in some cases, the potential for serious injury was
Nor am I persuaded that Agnello committed any breach of duty by failing to take
steps to separate Claimant's pair from Hayden's pair when he saw that they were
12 feet apart. Whether or not that was a safe distance hinged upon the types of
activities that were taking place at the time. Agnello testified that he did
not see a bat at the time that he observed the two pairs. Even if he had,
however, there is no evidence that swinging a three-foot hollow plastic bat
posed an unreasonable risk of harm to a person, like Claimant, who was standing
12 feet away.
3. Safety Measures
Claimant's last theory is that Defendant breached its duty of care by failing
to adopt and implement a safety plan that would have reduced the chance that
people who were walking about the gym would find themselves in the path of
wiffle ball bats or other striking implements.
Educators must use reasonable care to protect students in a classroom from
foreseeable risks of harm (
see, LaVoie v State of New York
, 91 AD2d 749; Yarborough
v City University of New York
, 137 Misc 2d 282, 285, supra
Although the risk of being struck with a baseball bat is an inherent part of the
game of baseball (Morgan v State of New York
, 90 NY2d 471,
Marlowe v Rush-Henrietta Central School Dist.
, 167 AD2d 820,
78 NY2d 1096; O'Bryan v O'Connor
, 59 AD2d 219),
liability may nevertheless be imposed for this type of sports-related injury if
reasonable precautions are not taken to prevent avoidable injuries
(see, Stackwick v Young Men's Christian Assn. of Greater
, 242 AD2d 878 [gym wall padding]; Alexander v Kendall Central
, 221 AD2d 898 [scoring table placement]; Parisi v
Harpursville Central School Dist.
, 160 AD2d 1079 [catcher's mask];
Locilento v John A. Coleman Catholic High School
, 134 AD2d 39 [shoulder
pads]; Eddy v Syracuse University
, 78 AD2d 989 [glass gym doors];
Darrow v West Genesee Central School Dist.
, 41 AD2d 897 [soccer
instruction]; Moschella v Archdiocese of New York
, 48 AD2d 856 and 52
AD2d 873 [catcher's mask]).
The evidence showed that the undergraduates received extensive preparation for
their first PE 336 lab. They attended at least one lecture taught by Dr. Craft
and two lab orientation sessions taught by Mr. Normandin. They received
pertinent information about their BOCES students and had an opportunity to
discuss the disabilities and behaviors they would encounter during the semester.
They also viewed a video tape of labs from previous semesters. During the
video, Mr. Normandin and Mr. Smith highlighted ideal and less than ideal
teaching methods exhibited on the tape.
The undergraduates also reviewed an information folder about their BOCES
student. This contained, among other things, an individualized education plan
that had been prepared by the undergraduate who had worked with the BOCES child
during the previous semester. Undergraduates like Claimant, who were assigned
to work with children who used wheelchairs, were told to discuss their child's
specific needs with Mr. Smith before the first lab session.
Each undergraduate also had to prepare a written lesson plan which described
what they hoped to do with their child during the first lab. Several days
before class, the plans were evaluated and approved by a graduate student.
Among other things, the plans had to contain a discussion of safety measures
that would be appropriate to the lesson. Undergraduates were also told to
arrive before the lab, gather the equipment they would need for their lesson,
and claim an area of the gym where they could carry out their lesson plan.
With regard to teaching methods, Mr. Normandin testified that he told the
undergraduates to establish a "home base" using masking tape, photographs, hula
hoops, cones or other visual cues so that their BOCES student would know where
to stay in the gym. He and Dr. Craft also recalled telling the undergraduates to
develop "with-it-ness" -- the teachers' skill of focusing on a single activity
while simultaneously remaining aware of other activities in other parts of the
room. Though Claimant denied receiving any of this instruction in PE 336, she
said that it was stressed in the PE 300 prerequisite class. She also used the
"home base" techniques described by Mr. Normandin in her own lesson plan.
Claimant argues that all of the lab preparation measures mentioned above did
not constitute an adequate safety plan because no effort was made to review the
lesson plans in the aggregate to determine whether and how the activities they
described could safely be conducted in the gymnasium. An adequate safety plan,
Claimant argues, would have segregated batting and other striking activities
into distinct parts of the gym (such as corners) which were marked off from
other areas by cones. Claimant also argues that the students should have been
told before class where they ought to carry out their activities.
In support of Claimant's position, Mr. Milazzo testified that the safest plan
would have positioned batters so that they were facing toward the corners of the
room and would have coned off the areas where batting was taking place. This,
according to Mr. Milazzo, would reduce the risk that people who were fielding
balls would wander into other teaching areas. It would also minimize the risk
that non-batters would get too close to the students who were batting.
On cross-examination, Mr. Milazzo acknowledged that layouts other than the one
he described could have been acceptable from a safety standpoint and that
undergraduates like Claimant had a responsibility to make visual assessments to
determine where activities could be carried out safely and to make sure that no
one was infringing upon their teaching space.
Having carefully considered all of the evidence, I conclude that Defendant
fulfilled its duty of care to Claimant. As described above, the lab preparation
that the students received was extensive. It conveyed the message that the
undergraduates had to establish their own teaching space and be mindful of their
surroundings. The fact that Defendant did not specifically delineate where each
undergraduate student should conduct his or her lesson did not make the plan an
unreasonable one. Defendant's instructors were entitled to consider the age and
previous experience of the undergraduates. They were also permitted to take
into account the purpose of the class -- to help the undergraduates master the
teaching skills that they would need to be professional physical education
teachers. Telling the undergraduates where and how to conduct their lessons
would have undermined the lab experience and the training it was supposed to
provide. Defendant's lab preparation adequately addressed the safety concerns
without unduly compromising this valuable learning experience.
The claim must be dismissed.
All motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
April 5, 2000
HON. PHILIP J. PATTI
Judge of the Court of Claims
Mr. Milazzo is misidentified in the transcript as Mr. Maloso.
Dr. Davis is misidentified as Dr. Eadis in the transcript.
All references to "upper," "lower," "right" or "left" walls, refer to the
representative drawing of the gym that was received in evidence as Exhibit
Claimant testified that the red line that runs along the bottom of Exhibit 10
shows the path she and King followed when they entered the gym. The hash mark
that intersects that line shows where she stopped the wheelchair and helped King
out of it.
See, e.g., Smith v Vernon Parish School Bd.
, 442 So 2d
1319, cert denied
445 So 2d 451 (absence of high school gym
teacher from gym for "a few minutes" while students used trampoline was not a
breach of duty; trial order of dismissal affirmed); Hammond v Scott
SC 137 (teacher who left junior high students unattended in a wood shop did not
breach a duty of care; summary judgment affirmed); Schuyler v Bd. of
Education of Union Free School Dist. No. 7
, 18 AD2d 406, affd
15 NY2d 746 (constant surveillance of 12-year-old students' movements on
playground during recess not required; judgment for plaintiff reversed);
Anderson v North Shore Central School District
, NYLJ March 28, 2000, 31,
col 5; Kerby v Elk Grove Union High School Dist.
, 1 Cal App 2d 246 (high
school gym teacher had no duty to maintain "strict scrutiny" of students during
free play basketball game; j.n.o.v. affd
v Westfall Local School Bd. of Education
, 1986 Ohio App LEXIS 8130 (alleged
failure of middle school teacher to maintain unobstructed view of classroom
between bells was not a breach of duty to supervise; summary judgment
In light of my findings on the negligence issues, I have not reached the
question of whether primary assumption of the risk is a bar to Claimant's