Benitez v. New York City Board of Education

Judgment, Supreme Court, Bronx County (Hansel McGee, J.), entered June 10, 1986, which, after a jury trial, inter alia, awarded plaintiff $946,000 for loss of earnings and $304,000 for pain and suffering, and apportioned liability 30% against plaintiff and 70% against defendants, affirmed, without costs or disbursements.

This personal injury action is an outgrowth of injuries sustained by plaintiff, a 19-year-old football player at George Washington High School (GW), during the course of a league game in A Division competition. He has sued both the New York City Board of Education and the Public Schools Athletic League of the City of New York alleging, inter alia, negligence on the part of the coach and principal of GW in permitting him to play in a "mismatched” game, and in a fatigued condition.

The record discloses that GW’s principal, after a disastrous 1982 season in A Division play, requested a transfer to B Division, citing GW’s poor record and its toll of injuries. The request was rejected, not on the merits, but because of a supposed two-year prohibition against such transfers which, as it turned out, was honored in the breach. The principal appealed, arguing that GW’s continuance in the same division was "unsafe.” The denial of that appeal was taken to Angelo Aponte, the Chancellor’s representative. Again, the injury factor was cited, with the caution that, unless transferred back to the B Division, GW might suffer "an additional string of serious injuries to our players.” In a second letter the principal argued that GW’s players were being asked to "stay another year and shoulder inevitable injuries * * * against some of the most powerful football teams in the City.” The latter appeal was also denied.

After the "painful” decision to play the 1983 schedule was made, GW’s new principal spoke to Coach Walsh who expressed the opinion that the John F. Kennedy High School (JFK) game should not be played and that there "was a very high risk of injury.” Even JFK’s principal concurred in that view and wrote to that effect. Speaking of his own school, he noted, "Just in sheer numbers, [we] were able to go out on a field and have fresh kids out there all the time.”

The incident itself occurred just 1 minute and 17 seconds prior to the end of the first half and in the 56th play of that half. GW was on the receiving end of a kickoff. Plaintiff’s assignment was to circle around and block any JFK lineman trying to tackle the GW receiver. As plaintiff described the play, the other guy "just run me over: I just poof.” Plaintiff testified that he was tired when the injury occurred, although he had never complained to Coach Walsh. Of the 56 plays up to that point, plaintiff had played in all but 9, as indicated in the game film (which was not of the best quality), or 1, as he and Coach Walsh testified. Plaintiff also maintained, contrary to defendants’ proof, that, at the time of the injury, he had maintained his head in the proper blocking position. To an extent, this claim was supported by his medical expert. According to the coach, plaintiff played virtually the entire game because he had no replacement for him except a 110-pound boy who was "physically incapable of competing in that kind of competition.” Plaintiff’s experts testified that a mismatch or playing while tired increases the risk of injury. Coach Walsh knew that it was unsafe for plaintiff to be "out there playing as they were playing”, i.e., both ways, offense and defense, full time. Dr. Warren, defendants’ expert, conceded that "[tiredness * * * would affect the coordination level of a player.”

It is well settled that a school has a duty to supervise the activities of the students in its charge. (Cavello v Sherburne-Earlville Cent. School Dist., 110 AD2d 253, 255, lv dismissed 67 NY2d 601.) That the student is engaged in supervised interscholastic varsity sports does not lessen the school’s duty. (See, e.g., Ehlinger v Board of Educ., 96 AD2d 708.) Whether the actions of a school or school board are adequate and reasonable and, if not, whether its negligence was a proximate cause of an accident are almost always questions of fact. (See, e.g., Decker v Dundee Cent. School Dist., 4 NY2d 462, 464; Merkley v Palmyra-Macedon Cent. School Dist., 130 AD2d 937, 938.) For an act to be deemed a proximate cause it must be shown to have been a " 'substantial cause of the events which produced the injury’ ” (Boltax v Joy Day Camp, 67 NY2d 617, 619, quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Even though an activity may carry with it a certain risk of harm, where the defendant has acted in such a way as substantially to enhance or increase the likelihood of harm that may befall a participant, the defendant’s conduct is actionable. (Humphrey v State of New York, 90 AD2d 901, affd 60 NY2d 742; Hulett v State of New York, 4 AD2d 806, 807.)

The evidence here indicates that defendants unreasonably enhanced or increased the risk of plaintiff being injured by playing him in a game between mismatched teams and by playing him for virtually the entire game, while he was tired, because there was no adequate substitute for him. While plaintiff was a voluntary participant in the game, never having complained of being tired, the law does recognize, especially in student-teacher relationships, that a degree of indirect compulsion exists, nonetheless. (See, e.g., Verduce v Board of Higher Educ., 8 NY2d 928; Yarborough v City Univ., 137 Misc 2d 282.) The rationale is that the student is understandably reluctant to refuse to participate for fear of the negative impact such refusal might have on his or her grade or standing. Such reasoning applies here. Plaintiff was "one of the best football players to come out of GW”; he had a "drawer full” of letters from colleges. In such circumstances, it is not at all surprising nor legally fatal to his cause that plaintiff had not asked to be taken out of the game.

Our analysis of the record reveals sufficient competent evidence which, if accepted, makes out a prima facie case that defendants were negligent in permitting plaintiff to play in a game in which his team was greatly outmatched and in circumstances in which the likelihood of his being injured was significantly enhanced. The question of plaintiff’s own negligence was, of course, submitted to the jury, which assessed it at 30%.

Defendant’s dire forecast that a finding of liability here will open the floodgates and lead inevitably to the total collapse of the Board of Education’s interscholastic sports program is somewhat overstated, to say the least. This is an unusual case, one in which the very incident which occurred was predicted. Concur — Sandler, Sullivan and Rosenberger, JJ.