New York State Court of Claims

New York State Court of Claims

RASKIN v. STATE OF NEW YORK, #2007-037-504, Claim No. 107925


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Cantor, Lukasik, Dolce & Panepinto, P.C.By: James A. Verrico, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Jillian Raskin[1] alleges in Claim Number 107925 that she was injured when Defendant negligently failed to provide adequate instruction and supervision during a class outing at Whispering Pines Camp, a facility near Franklinville, New York owned and operated by State University College at Buffalo (SUCB). The issues at trial were bifurcated and this decision relates solely to the issue of liability.

On June 26, 2001, the day of the incident, Claimant was a 21-year-old junior at SUCB majoring in elementary education. She was enrolled in a three credit elective course entitled “Total Immersion Spanish Program,” an intensive seven day program conducted at Whispering Pines Camp from June 24 to July 1, 2001 under the direction of Dr. Lee Ann Grace (Dr. Grace) and Professor Jose Agudelo (Prof. Agudelo), both employees of SUCB. Participating students were provided with a detailed packet of information about the course during a mandatory orientation meeting held at SUCB on June 9, 2001.[2]
The rationale for the course was to provide students with an opportunity to achieve a higher level of proficiency in listening and speaking Spanish as a second language in order to be qualified to teach or to increase their competency for other careers. This was achieved by placing the students in an educational setting totally removed from an English-speaking environment where they were required to speak Spanish twenty-four hours a day. In addition to daily classroom instruction, the students prepared and dined on authentic Hispanic cuisine and enjoyed music, films, games and other cultural experiences from the Spanish-speaking world. The orientation packet advised undergraduate students that for grading purposes they would be evaluated on the basis of a journal (in Spanish) that they were required to keep during the seven days, oral presentations, level of participation and progress in language skills.

Claimant testified that approximately fifteen undergraduate students were enrolled in the course and upon their arrival at the camp on June 24, 2001, they met with Dr. Grace, Prof. Agudelo and two graduate assistants to review the program for the week. Dr. Grace emphasized that the grade for the course would depend upon their active participation in all of the activities listed on the daily schedule, including the outdoor recreational activities which would be directed and supervised by the graduate assistants. Former students who testified on her behalf, Andrea Letcher and Jennifer Blank, confirmed Claimant’s understanding that active participation in all planned activities was necessary to meet the course requirements. The Court finds, therefore, that it was reasonable for Claimant to believe that a lack of participation on her part would have had some negative impact on her grade.
In 2001 Dr. Grace was Director of International Education and an Associate Professor in Modern and Classical Languages at SUCB, and is now Assistant Dean for International and Exchange Programs and Associate Professor of Spanish. She and a colleague created the Spanish immersion camp in 1980 and Prof. Agudelo, an Adjunct Professor of Spanish at SUCB, joined the program in 1999. In terms of shared responsibilities, Dr. Grace focused on logistics (e.g. organization, orientation, interviews of students, purchase of food items and materials, preparation of food, etc.), while Prof. Agudelo concentrated on daily planning and classroom instruction. The Court finds the testimony of Dr. Grace and Prof. Agudelo to be consistent and credible, indicating that the 2001 Spanish immersion program followed the usual format for the annual event. They met each evening with the graduate assistants to review and approve the recreational and cultural activities planned for the following day. At the meeting held on the evening of June 25, 2001, graduate assistant Milagros (Millie) Fancher introduced the concept of the students engaging in outdoor activities that simulated children’s games indigenous to her native Puerto Rico. Both Dr. Grace and Prof. Agudelo testified that they were not familiar with the games but approved them for use in the activities planned for the next day.

On the afternoon of the day in question, Millie Fancher and graduate assistant John Dunn, directed the students in the two games introduced by Ms. Fancher. In the first game a group of students formed a circle with their arms linked together while other students attempted to break out of the circle. The second game called “la cebollita”(little onion) was described by witnesses[3] as similar to a tug-of-war. Ms. Fancher instructed the students to form a human chain with the lead person holding onto the trunk of a tree and the others placing their hands on the waist of the person in front of them. While singing a song the students pulled from behind causing them to fall backward into each other which resulted in an injury to Claimant’s right ankle. At the time of the incident, Dr. Grace was away from the camp shopping for supplies and Prof. Agudelo was inside the main building preparing for afternoon classes.
Claimant, Ms. Letcher and Ms. Blank all testified that the la cebollita game was an activity in which they had never engaged and of which they had not previously heard and, although they did not completely understand the oral instructions given by Ms. Fancher in Spanish, they felt compelled to participate in the game. There is no indication in the record that the students were given any demonstration of the game or any instruction concerning the proper method of playing the game. Mr. Dunn testified that he and Ms. Fancher were supervising the activity when the students fell backward and Claimant was injured. Ms. Letcher, a trained physical therapist, attended to Claimant’s injured ankle and, with permission from Prof. Agudelo, transported her to Olean General Hospital for treatment.[4]
It is well settled that a school does not stand in the position of in loco parentis to its adult students (Eiseman v State of New York, 70 NY2d 175 [1987]; cf. Rydzynski v North Shore Univ. Hosp., 262 AD2d 630 [1999]). This is because adult students are viewed as “...capable of caring for themselves and making independent decisions...(citation omitted)” (Rydzynski v North Shore Univ. Hosp., supra) “and not young children in need of constant and close supervision” (Mintz v State of New York, 47 AD2d 570, 571 [1975]). However, a teacher is under a duty to exercise reasonable care to prevent injury to students in school sponsored activities. “This responsibility includes the obligation not to direct a student to do that which is unreasonably dangerous...(citations omitted), to see that any equipment supplied is reasonably safe for its intended use...(citations omitted) and to provide such instruction and supervision as is reasonably required to safely perform the directed tasks or to use the supplied equipment (citations omitted)” (Yarborough v City Univ. of N.Y., 137 Misc 2d 282, 285 [1987]). What is reasonable will, of course, vary with, among other factors, the age and abilities of the student (Mintz v State of New York, supra) and his or her reasonable expectations of due care under the circumstances (Turcotte v Fell, 68 NY2d 432 [1986]).

Thus, even a 28-year-old elementary education student taking a required course on teaching physical fitness to elementary age children was owed a duty of reasonable care when she was injured during participation in a sack race utilizing plastic bags on a wooden floor (see Yarborough v City Univ. of N.Y., supra). The Claimant there was required to take the course in order to receive a degree in her chosen field of study and had never participated in a sack race before. The Court of Claims found that the claimant was under a compulsion to participate in the activity and had the reasonable expectation that the activities she would be asked to undertake would not be unreasonably dangerous, and would be preceded by proper instruction. In her case, she should have been told to keep her feet together when jumping and should not have been provided with what essentially was unreasonably dangerous equipment: a plastic bag on a slippery wooden floor.

It is likewise well settled that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” (Morgan v State of New York, 90 NY2d 471 [1997]). Here, “[g]iven the limited amount of [claimant’s] preparation, it is not at all clear that the risks to which [claimant] was to be exposed...would have been ‘known, apparent or reasonably foreseeable’ to [her]” Deangelis v Izzo, 192 AD2d 823, 824[1993], quoting Benitez v New York City Bd. of Educ., 73 NY2d 650 [1989]; Turcotte v Fell, supra at 439). Factors to be considered in determining whether an individual has fully assumed the risks of a particular injury include the openness and obviousness of the risk; the participant’s background, skill and experience; the participant’s conduct under the circumstances; and the nature of defendant’s conduct. Perhaps the most important factor is whether the accident falls within the risks normally assumed by a person engaged in an activity like la cebollita (Lamey v Foley, 188 AD2d 157, 163-164 [1993]). Applying the foregoing, Claimant, as a student, was justified, at least partially, in assuming that the activity she was directed to undertake, in the presence of her instructors, would not be unreasonably dangerous to perform (Verduce v Board of Higher Educ. in City of N.Y., 8 NY2d 928 [1960]). Moreover, while she may have perceived some risk, she was justifiably reluctant to refuse to participate in light of the negative impact such decision could have had on her grade. Thus Claimant neither fully appreciated the risk nor was her participation fully voluntary.

Based upon the foregoing, after carefully considering the evidence presented, the Court finds that Defendant has breached its duty of care to Claimant and that the breach of this duty was a proximate cause of her injury. Directing adult students to engage in a children’s game without adequate instruction as to the proper technique to perform the activity created an unreasonable and foreseeable risk of injury. “Notwithstanding that claimant was an adult at the time of the occurrence, put in the form of a direction from teacher to student, it must have been anticipated that claimant would follow and rely on such command” (Yarborough v City Univ. of N.Y., supra at 285- 286, citing Verduce v Board of Higher Educ. in City of N.Y., supra). Nor was it reasonable to assume that Claimant would know, without instruction, the correct procedure for playing la cebollita, which is certainly not a matter of common knowledge.

The Court also finds that Claimant contributed to her own injuries. She should have perceived that there was some risk attendant to a tug-of-war style game involving adult students, particularly in view of the fact that she had just participated in a physical type game. Due care required her to at least voice her concern to Ms. Fancher and Mr. Dunn who then might have modified the activity or excused her from participation.

Accordingly, the Court finds the Defendant 75% liable and the Claimant 25% liable for this accident. The Court will schedule a trial on the issue of damages as soon as practicable.


December 18, 2007
Buffalo, New York

Judge of the Court of Claims

[1].Claimant Jillian Raskin was married after this claim was filed and is now known as Jillian Raskin Weber.
[2].Claimant testified at trial that she did not attend the orientation meeting. However, her signature appears on the orientation sign-in sheet (Defendant’s Exhibit I) and she previously testified at a deposition held on March 3, 2006 that she attended the meeting (Defendant’s Exhibit H at page 13, line 4).
[3].Milagros Fancher did not testify at trial.
[4].The claim contains an allegation that Defendant was negligent in failing to provide prompt and adequate medical treatment for Claimant’s injury but there was no proof adduced at trial to support that contention and it is deemed abandoned.