Benitez v. New York City Board of Education

Murphy, P. J.,

dissents in a memorandum as follows: Because the evidence establishes that the injury to the plaintiff resulted from the risks ordinarily attending participation in a football game and, even more basically, that defendants were not guilty of. breaching any duty to the plaintiff, I dissent and would dismiss the complaint.

On October 22, 1983, plaintiff, a 19-year-old high school senior and a team member of the George Washington High School (GW) varsity football team, was seriously injured while blocking an opponent on the John F. Kennedy High School (JFK) varsity football team. Both teams were members of the A Division.

During the 1982 season, GW lost all of its seven games and its players sustained 14 injuries, typically associated with the sport of football. The first three games of the 1983 season were "competitive”. The fourth game, against JFK, was the game in which plaintiff sustained his injury. Plaintiff was injured near the end of the first half of the game when he blocked an opposing player during a "kickoff return”. The opponent was only three inches taller and 12 pounds heavier than plaintiff, and, as described by his own coach, was of "marginal ability.” According to plaintiff, "I block him, and poof. And I had — he just run me over: I just poof’.

Defendants attributed the injury to improper blocking by the plaintiff: "spearing” or "butt” blocking. Plaintiff claimed he properly blocked the opponent, but was fatigued. Plaintiff contended that the Board of Education and Public Schools Athletic League (PSAL) had been negligent in placing and maintaining the GW team in the A Division for the 1982 and 1983 seasons. Plaintiff further maintained that the principal and the coach had negligently permitted plaintiff to play in a *461mismatched game, and that the coach had been additionally negligent in permitting plaintiff to play while fatigued. The jury found defendants liable on all of these theories and awarded plaintiff damages in the gross amount of $946,000 for loss of earnings and $304,000 for pain and suffering. The plaintiff was found to be 30% responsible for his injuries with the remaining 70% liability apportioned to defendants.

After the verdict, the trial court granted defendants’ motion to dismiss the two causes of action against the PSAL predicated on the placement of the team in the A Division, but sustained the verdict insofar as it rested on the findings of negligence against the principal and coach.

On appeal, defendants maintain that there was no evidence of any negligence by defendants and that the suit should therefore have been dismissed, in its entirety.

While it is well established that a school must supervise the activities of its students, the standard of care required of the school is not as well settled. The New York Court of Appeals has imposed a duty upon a teacher to exercise "reasonable care” while supervising students (Govel v Board of Educ., 267 App Div 621, 624, affd 293 NY 928), but on occasion has also imposed a more demanding "ordinary prudent parent” standard. (Lawes v Board of Educ., 16 NY2d 302, 305.) A review of the cases which apply both of these standards reveals that they exclusively address situations which have occurred during regular school hours when the student is required to participate in school activities.

As the instant controversy concerns an occurrence during an extracurricular scholastic sports program, neither of the standards articulated in Govel (supra) and Lawes (supra) is directly applicable. While it appears that no New York cases have specifically spelled out the standard of care with which school personnel are to be held in such noncompulsory circumstances, it is questionable if the higher standard of care is appropriate. Even if it were applicable, the standard would have to account for the fact that plaintiff, a 19 year old at the time of his injury, was emancipated and therefore required little or no supervision from his parents. (Cf., Pratt v Robinson, 39 NY2d 554, 560 [1976].)

In any case, assuming the applicability of the more demanding standard of care, and also assuming that plaintiff’s injury was a result of fatigue, there is no evidence which indicates that defendants deviated from the standard of a reasonably prudent parent under the same circumstances.

*462The evidence proves plaintiffs injury was the result of the risks he assumed when he chose to participate in the sport of football. As Chief Judge Cardozo wrote in Murphy v Steeplechase Amusement Co. (250 NY 479, 482): "Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary” (see also, Passantino v Board of Educ., 41 NY2d 1022 [1977], revg 52 AD2d 935 [2d Dept 1976]). Two such risks of football participation are fatigue and injury.

While plaintiff acknowledges the doctrine of assumption of the risk he urges that the coach was negligent by unreasonably enhancing the risk of injury "by playing him for virtually the entire game (and while he was tired) because there was no substitute for him”. (Cf., Maddox v City of New York, 66 NY2d 270 [1985].) However, in light of the fact that fatigue and injury were inherent risks assumed by plaintiff, the coach’s negligence can only be established if the evidence proves he knew or should have known that playing plaintiff as he did created a risk unknown to plaintiff. (Supra, at 279.) Moreover, plaintiffs awareness of the risk must be assessed against the background of his skill and experience. (Supra.)

At the time of plaintiffs injury, during the fourth game of the 1983 season, he was in his third year on the football team. He had participated in the vigorous training program at football camp and had trained regularly. Plaintiff admits he was taught the proper blocking techniques and regularly blocked players bigger than himself. In fact, Coach Walsh, whom it is conceded was an expert, highly qualified, competent and effective coach, regularly reviewed the dangers of using an improper head block.

As described by Coach Walsh, plaintiff was "poetry in motion. He was a tremendous athlete. It was even before his senior year, and he received six or seven different offers, from different schools * * * He was blue chip right down the line.” The state of plaintiffs physical conditioning was "incredible”. Indeed, plaintiff had played, without incident, the entire 1982 season against A Division teams (including JFK). Moreover, plaintiff played on offense, on defense and on special teams in every quarter of each game. In 1983, plaintiff continued his usual practice of playing full games, "both ways” in the first three games of the season.

Under these circumstances, there is no doubt that plaintiff knew what it was like to play a full game, always played a full games and was well accustomed to the fatigue associated *463with playing a full game. Clearly, when plaintiffs injury occurred — near the end of the first half of the game against JFK, a team plaintiff had previously played without incident —he was well aware of precisely the physical demands the game would make of him. There is absolutely no evidence that Coach Walsh enhanced plaintiff’s risk of injury. Indeed, Coach Walsh played plaintiff as he always had,* plaintiff never indicated that he was more tired than normal, and plaintiff’s performance, up to the point of his injury, was up to par.

Consequently, plaintiff’s assertion that Coach Walsh knew, or should have known, that it was unsafe to play plaintiff, in the manner that he did, or that plaintiff did not know it was unsafe to be playing as he was playing, is unsupported by the evidence. It is clear that the coach’s decision to play plaintiff as he always had did not "amount to such careless disregard for the safety of [plaintiff] as to create risks not fairly assumed [by him].” (McGee v Board of Educ., 16 AD2d 99, 102 [1st Dept 1962], appeal dismissed 12 NY2d 1100 [1963].) Thus, plaintiff has not overcome defendants’ defense of assumption of the risk.

In a further attempt to defeat the assumption of the risk defense, plaintiff contends that his decision to play in the JFK football game was not voluntary but was made under an implied direction by his coach. Essentially, plaintiff urges that he was "justified in assuming that the coach would not subject him * * * to unsafe conditions” and plaintiff "had no choice but to follow the coach’s direction” since, if he did not, it may have had "a negative impact upon a future football career.” Plaintiff’s theory is based upon the principle explained in Broderick v Cauldwell-Wingate Co. (301 NY 182, 188 [1950]) as follows: "when a person in the capacity of a superior assumes control over a workman on a job and directs him to proceed under circumstances recognizable as dangerous, the subordinate workman has little, if any, choice in the matter but to obey it and, if he stays within the limits of the superior’s instructions and is injured, he may not be penalized by a claim of contributory negligence as a matter of law.”

While this principle may be relevant to a situation where a coach directs his student to play football, notwithstanding the fact that the student is obviously unable to play in the manner directed, the Broderick principle is inapplicable to the *464instant case. (Cf., Verduce v Board of Higher Educ., 8 NY2d 928 [I960]; Yarborough v City Univ., 137 Misc 2d 282 [Ct Cl 1987].) Here, not only does the record lack evidence of any explicit, or for that matter, implied compulsion for plaintiff to play football, there is no evidence of circumstances so dangerous as to warrant invoking the principle enunciated in Broderick (supra).

In sum, while the defense of assumption of the risk is ordinarily a question of fact for the jury, the evidence proves that the defense was clearly established and was not rebutted. Hence, plaintiff has neglected to make out a prima facie case of negligence: there is in fact, no proof that plaintiffs injury was a result of defendants’ negligence. (See, Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981].) At best, plaintiffs injury was a result of fatigue, the risk of which was assumed by plaintiff when he chose to play the sport of football. While experts testified that fatigue increases the likelihood of injury, a fact which would hardly seem controversial, there was no evidence that plaintiffs injury was a result of extraordinary fatigue. Indeed, plaintiff never demonstrated any causal link between his injury and his fatigued state. To the contrary, plaintiff claims, despite his alleged fatigue, to have performed properly and not to have contributed to his injury by employing improper blocking techniques.

Finally, it must be noted that while there is evidence that the coach and principal felt that GW would have been better placed in the B Division and that GW was thus mismatched against JFK, there is no evidence that such alleged "misplacement” or "mismatch” was causally connected to plaintiffs injury. Plaintiffs injury was an isolated occurrence in a closely played game. At the time of plaintiffs injury, just before the end of the first half, the score was 13 to 6, JFK had just scored and plaintiff, a star athlete, was injured while blocking a player of "marginal ability” on a kickoff return. Clearly, plaintiffs injury cannot be attributed to a "mismatch”.

In sum, plaintiff has failed to "introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendants] was a cause in fact of the result” (Prosser and Keeton, Torts § 41, at 269 [5th ed]).

Accordingly, the judgment of the Supreme Court, Bronx County (McGee, J.), entered June 10, 1986, should be modified to the extent of dismissing plaintiffs remaining causes of action.

While the coach played plaintiff the entire game because he had no replacement for him, he always played plaintiff the entire game, and plaintiff was well accustomed to playing full games.