PAPERS CONSIDERED:The NOTICE OF MOTION FOR SUMMARY JUDGMENT of

Defendants;

the ATTORNEY AFFIRMATION of Paul J. Suozzi, Esq., with

annexed exhibits;

the AFFIDAVIT of Dawn G. Cavaretta;

the MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'SMOTION FOR SUMMARY JUDGMENT;

the ATTORNEY'S AFFIDAVIT of Bradley D. Marble, Esq., with

annexed exhibits;

the AFFIDAVIT of Susan l. Rinaldo; and

the ATTORNEY'S REPLY AFFIRMATION of Paul J. Suozzi, Esq.

The complaint in this action seeks to recover damages for personal injuries sustained by then 11-year-old Stephen J. Rinaldo, Jr. (hereinafter plaintiff, in the singular) as a result of an accident that occurred on January 12, 2010. The accident occurred during practical swimming [*2]instruction in physical education class at Casey Middle School, part of the Williamsville Central School District (hereinafter the district or defendant, in the singular), where plaintiff was a sixth-grade student. The instructional exercise, in which plaintiff participated along with his classmates, was intended to teach the basic movement of the butterfly stroke. The students were thus instructed to swim the width of the pool with their arms at their sides while kicking through the water with flippers and bobbing their heads and upper torsos up and down in an undulating manner. For the purpose of practicing the maneuver, the gym class was divided into two groups. Plaintiff and his group successfully completed their first four passes of the pool without incident. On the fifth pass, plaintiff, who was swimming with his eyes closed, struck his face on the far wall of the pool, sustaining a compound fracture of his nose (on which he underwent a closed reduction two days later) and allegedly also a concussion that caused him to experience headaches for a few weeks but no residual brain injury.

Plaintiff emphasizes that, because of the sensitivity of his eyes to chlorine, he needed either to swim with his eyes closed or to wear swim goggles (which he was not wearing at the time). It is undisputed, however, that although the students were not required to wear goggles in the pool, such goggles were made available to the students by defendant (plaintiff claims not to have seen the supply of goggles, however). Moreover, plaintiff personally owned goggles that he had brought from home into school on prior occasions and that he may in fact have had with him in school on the day of the accident.

The complaint and bill of particulars allege defendant's negligence in failing to properly supervise and monitor plaintiff and in failing to properly instruct and warn him relative to proper swimming technique.^[FN1] Indeed, judging by his papers on the instant motion, plaintiff's primary specification of negligence against defendants seems to be that the class instructor and monitor (i.e., two district functionaries) were negligent in failing to tell plaintiff not to swim with his eyes closed, lest he strike his face on the side of the pool. By its answer, defendant generally denies any liability and alleges, as an affirmative defense, that the incident was caused in whole or in part by the culpable conduct and/or assumption of risk of the plaintiff.^[FN2] Now, following joinder of issue and full disclosure in the action, defendant moves for summary judgment dismissing the complaint on the ground that defendant did not breach its duty of reasonable supervision and instruction of the infant plaintiff, and that its duty of reasonable care did not extend to specifically instructing or warning plaintiff not to swim with his eyes closed. Plaintiff opposes the motion. Upon its consideration of the parties' respective submissions, this Court renders the following determinations:

It is well settled that a school district owes an unqualified and mandatory duty to adequately supervise the students in its charge, and that it will be held liable for foreseeable injuries proximately [*3]caused by the lack of adequate supervision (see Mirand v City of New York, 84 NY2d 44, 49 [1994]; Lawes v Board of Educ. of City of NY, 16 NY2d 302, 306 [1965]; Decker v Dundee Cent. School Dist., 4 NY2d 462, 464 [1958]). Although a school is surely not an insurer of the safety of its students inasmuch as it cannot reasonably be expected to continuously supervise and control all of the students' movements and activities (see Mirand, 84 NY2d at 49), a school nonetheless "owes its students such care as a parent of ordinary prudence would observe in comparable circumstances" (Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388 [2d Dept 2004]; see David v County of Suffolk, 1 NY3d 525, 526 [2003]; Mirand, 84 NY2d at 49). Thus, the test for "determining whether this duty was breached is whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision" (Mary KK. v Jack LL., 203 AD2d 840, 841-842 [3d Dept 1994]; see Murray v Research Foundation of State Univ. of New York, 283 AD2d 995 [4th Dept 2001], lv denied 96 NY2d 719 [2001]). A school further has a duty to provide adequate instruction to the students in its care and will be held liable for injuries foreseeably and proximately resulting from its negligent failure to give such instruction (see Dworzanski v Niagara-Wheatfield Cent. School Dist., 89 AD3d 1378 [4th Dept 2011]; Oakes v Massena Cent. School Dist., 19 AD3d 981, 981-982 [3d Dept 2005]; Darrow v West Genesee Cent. School Dist., 41 AD2d 897 [4th Dept 1973]).

Applying the foregoing principles, the Court concludes that defendant sustained its burden on the motion of demonstrating its entitlement to judgment as a matter of law dismissing the complaint of negligent supervision and instruction (see David, 1 NY3d at 526, affg 295 AD2d 556 [2d Dept 2002]; Berdecia v City of New York, 289 AD2d 354, 354-355 [2d Dept 2001]). The Court further concludes that plaintiff failed to raise a genuine material triable issue of fact (David, 1 NY3d at 526). At the outset, the Court rejects the suggestion that this case has anything to do with the ADHD condition of the infant plaintiff or the fact that he had been the subject of an Individualized Education Plan since the second grade. Although plaintiff asserts that he consequently requires a structured environment, simplified directions, and multiple prompts and assistance in order to stay on task, the proof establishes that the occurrence of the accident had nothing to do with any of those needs. Plaintiff's basic claim is not that the instructions were not sufficiently simplified for him, but that they were not sufficiently involved or complex. Moreover, the evidence shows that plaintiff was not in need of special prompts and assistance in order to carry-out his swimming assignment, at which he remained decidedly on task.

Further, the Court finds no merit as a matter of law in plaintiff's general allegations of lack of adequate supervision. As indicated, there were two supervisors in the pool area, viz., the physical education teacher who was imparting the swimming instruction to the class of 20-30 students, and a swimming coach and qualified lifeguard who served as a second set of eyes for the gym teacher during the session. Although plaintiff faults the district for the fact that neither supervisor got into the pool with the students, the Court fails to see how such measure might have been foreseeably necessary, might have prevented the accident, or would have been even desirable from the standpoint of overall swimmer safety. Plaintiff also faults the instructors for not observing the swimmers from above the far wall of the pool, where plaintiff struck his face. However, the record demonstrates that the accident occurred not because plaintiff had his eyes closed for some or even most of his way across the pool, but rather because (unlike on his previous forays across the pool) he failed even to peek at the wall as he neared it. The Court thus concludes that the accident was outside the practical ability of the district to prevent even in the exercise of highly intensive supervision (see Mayer v Mahopac Cent. School Dist., 29 AD3d 653, 655 [2d Dept 2006]; see generally Johnson v Ken-Ton Union Free School Dist., 48 AD3d 1276, 1277-1278 [4th Dept 2008]).

Plaintiff nonetheless specifies that defendant was negligent in the manner in which it instructed the students and more particularly in failing to instruct or warn or guard plaintiff against the risk of his hitting his head on the side of the pool while undulating across it without the use of his arms. The Court [*4]cannot conclude that the district was even arguably negligent in the manner in which it taught the students the beginnings of the butterfly stroke. The undisputed testimony of the gym teacher and averment of the physical education department head is that the gym teacher taught the technique as he himself had been (expertly) taught to teach it; that he had never had a student strike his or her head on the side of the pool in 24 years of such instruction; and that plaintiff himself had repeatedly completed that drill and similar ones without mishap or apparent difficulty before the accident, including four times earlier during that very class. Based on its own common knowledge, the Court notes that doing the butterfly stroke, like certain other swimming strokes, necessarily involves moving through the water without one's arms outstretched in front of one's head at least part of the time.

The case thus reduces to plaintiff's allegation that the instructors were negligent in failing to advise plaintiff to swim only with his eyes open. As a matter of law, plaintiff cannot prevail on that theory. For one thing, the undisputed testimony of the gym teacher is that he was unaware either that the pool chlorination bothered plaintiff's eyes or that he was swimming with his eyes closed. For another, the testimony of both the gym teacher and the lifeguard is that the gym teacher in fact had instructed the students on pool safety, including by telling the students to look for the edge of the pool and also to look at the lane markings at the bottom of the pool in order to track their location within the water (plaintiff denies hearing any instruction about watching for the lane markings). The Court feels that such instruction, if given, adequately and carefully conveyed to the students that they should not swim with their eyes invariably closed. Even if that instruction had not been given, however, the Court would find it impossible to sustain plaintiff's specification that the instructors were negligent in failing to tell an 11-year-old not to swim with eyes closed, or that such negligence caused the accident.^[FN3] As indicated, the instructors had no inkling that plaintiff was swimming with his eyes closed, and swim goggles were made available for the students' use in the pool. Moreover, plaintiff had swum across the pool before, including repeatedly on the day of the incident, and thus had to have been aware of the dimensions of the pool and the location of its edge. It is well established that a defendant is not chargeable with negligence for allegedly failing to warn a plaintiff against a premises danger or condition (the Court surely cannot label the condition of the side of the pool as a "defect") that is open and obvious, readily discernible, or otherwise known to or reasonably to be appreciated by the plaintiff (see Tagle v Jakob, 97 NY2d 165, 169 [2001]; Cimino v Town of Hempstead, 66 NY2d 709 [1985], affg without opn 110 AD2d 805, 805-806 [2d Dept 1985]; Cramer v County of Erie, 23 AD3d 1145, 1146 [4th Dept 2005]; Bush v Brentwood Veterans War Memorial, Inc., 302 AD2d 546, 547 [2d Dept 2003]; Duclos v County of Monroe, 258 AD2d 925, 926 [4th Dept 1999]; Tushaj v City of New York, 258 AD2d 283, 284 [2d Dept 1999], lv denied 93 NY2d 818 [1999]; Coote v Niagara Mohawk Power Corp., 234 AD2d 907, 909 [4th Dept 1996]; Plate v City of Rochester, 217 AD2d 984 [4th Dept 1995], lv denied 87 NY2d 801 [1995]); see also Barry v Gorecki, 38 AD3d 1213, 1215 [4th Dept 2007], rearg denied 42 AD3d 975 [4th Dept 2007]). On that basis, the Court concludes that the instructors could be no more duty-bound to warn a student to swim only with his eyes open, lest he strike his head against the side of the pool, then they would be duty-bound to specifically tell a student to keep his eyes unblinkingly open as he walked around the school, lest he trip over or bump into something.

Accordingly, the motion of defendants for summary judgment dismissing the complaint is GRANTED.

SO ORDERED:

[*5]

HON. PATRICK H. NeMOYER, J.S.C.