The court’s Decision and Order is based upon consideration of the following papers: CPLR 2219(a) Recitation: NYSCEF Numbers: 9, 10, 12-17, 22-26, 28. DECISION AND ORDER Defendants, THE CITY OF NEW YORK (“CITY”) and THE NEW YORK CITY DEPARTMENT OF EDUCATION (“DOE”) move for an order pursuant to CPLR §3212 granting summary judgment dismissing Plaintiffs’ complaint. This is an action sounding in negligence against the City of New York and the New York City Board of Education alleging that Defendants failed to adequately supervise plaintiff while participating in a game of “zombie tag” during a Saturday morning recreational program offered by the school. Defendants contend that supervision was adequate, and that the accident was a result of a spontaneous and unforeseeable act of another student and that no additional supervision would have prevented it from occurring. They also claim that Plaintiff was aware of the possibility of injury and that he assumed the risk of injury by participating in the recreational activity. Plaintiffs allege that the accident was foreseeable, and that adequate supervision would have prevented the injury from occurring. They argue that lack of supervision and instruction unreasonably increased the Plaintiff’s risk of injury by, among other things, mixing older children with the younger ones in the game and by failing to set rules, parameters and/or guidelines for playing the game. Plaintiffs instituted this action for personal injuries sustained by the Infant Plaintiff on November 12, 2016. Plaintiff, a ten-year-old 5th grader, attended P.S. 257′s “Saturday Sports Academy,” an elementary school recreational program organized and supervised by Defendants. Plaintiff was injured when he and another student collided in the school’s gymnasium during a recreational game of “zombie tag.” The “Saturday Sports Academy” was created for students attending grades Kindergarten through fifth grade at P.S. 257. Students attending the recreational program were selected by teachers each year and were required to obtain parental permission to participate. The program, at the time of the incident, had been in its eighth or ninth year. About two or three years prior to the incident, the school commenced a partnership with Middle School 126 to bring in several middle school students as “big brothers/big sisters” to the students of P.S. 257 who participated in the recreational program. The program, supervised by Assistant Principal Melvin Martinez, consisted of twenty-five students including between five to six middle school students. As usual, Assistant Principal Martinez was the only adult present in the gymnasium on the day of the incident. It was his practice to divide students according to age for some of the activities. However, for “zombie tag”, all children, from kindergarten to the 7th grade, played the game together. In playing zombie tag, the children would decide who would start out as zombies in the beginning of the game. During the game, the zombies would chase after the other children, who become zombies when caught. As they run to get away, children look out for as many zombies as may be chasing them. In his deposition, Assistant Principal Martinez testified that “(k)ids will make believe they’re a zombie and they will have to attack a kid and that kid becomes a zombie.” The students were free to use the entire gym during the game. Assistant Principal Martinez testified that he would usually stand in front of the time clock in the gymnasium to view the entire gym. On the day of the incident, the game started out with three to four zombies chasing the rest of the group, which numbered 18 in total. The zombie tag game was in play for about five minutes when A. V. collided with another student, “J”, hitting his head on J’s chin and then falling and hitting his head on the wooden floor. A. V. testified that as they were running, he had a zombie chasing him from his left side and J had a zombie chasing him from his right side. The Assistant Principal testified that no instruction was given to the children as to who could run after whom during the game and that the entire group was permitted to play at the same time regardless of the size and age of the player. Generally, the Saturday Sports Academy did not maintain rules or regulations for the children to abide by as they participated in any recreational activity. It is well established that “(s)chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v. City of New York, 84 N.Y.2d 44, 49 [1994]; Duffy v. Long Beach City School Dist., 134 A.D.3d 761 [2d Dept 2015]). A school district has the duty to exercise the same degree of care and supervision over pupils under its control as a reasonably prudent parent would exercise under the same circumstances (See A.C. v. Brentwood Union Free School Dist., 190 A.D.3d 925 [2d Dept. 2021]; Lawes v. Board of Educ. of City of N.Y., 16 N.Y.2d 302, 305 [1965]). “The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” (Mirand v. City of New York, 84 N.Y.2d 44, 49). “The standard 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” (Tutaj v. Seaford Union Free School Dist., 179 A.D.3d 968 [2d Dept. 2020] [internal citation omitted]). “A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained” (RT v. Three Vil. Cent. Sch. Dist., 153 A.D.3d 747, at 748 [2d Dept. 2017]; See Mirand v. City of New York, 84 N.Y.2d 44, at 50; Mathis v. Board of Educ. of City of N.Y., 126 A.D.3d 951, at 952-953 [2d Dept. 2015]). “The adequacy of a school’s supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff’s injury” (RT v. Three Vil. Cent. Sch. Dist., 153 A.D.3d 747, at 748; See Braunstein v. Half Hollow Hills Cent. Sch. Dist., 104 A.D.3d 893, 894 [2d Dept. 2013]; Nizen-Jacobellis v. Lindenhurst Union Free School Dist., 191 A.D.3d 1007 [2d Dept 2021]). Here, as to the claim of inadequate supervision, Defendants failed to establish, prima facie, that they adequately supervised the students including but not limited to, the nature of the activity involved, the mixed ages of the participants, the manner the game is played, the number of players involved in the game and the rules established for playing the game — or the lack thereof. On that day, the game included eighteen children of all ages. Those in kindergarten could be as young as five while a 7th grader may be as old as twelve or thirteen years of age. It is not difficult to imagine the difference in height and weight attributable to children included in this group. Indeed, the testimony indicates that the seventh grader who collided with Plaintiff, a fifth grader, was a taller boy. It is noted that the Assistant Principal testified that the difference in the size of the students playing the game was not considered in setting up the zombie tag game. Additionally, the evidence indicates that no set of rules, guidelines or parameters were established for playing the game while ensuring student safety. Indeed, Mr. Martinez stated that the kids were free to run around and tag whomever they chose and that he was the only adult supervising and organizing the students for the zombie tag game. Considering the attendant circumstances, defendants failed to establish the adequacy of supervision and its submissions do not establish that a risk of injury in playing the game in the manner described was unforeseeable. Additionally, the nature of the game itself under the circumstances described herein raises questions of fact for the jury. The Court notes that the main goal of the game was to avoid being turned into a zombie. Plaintiff testified that a person, once tagged, also becomes a zombie. In time all the zombies chase after the remaining few players. The last person remaining untagged becomes the winner. This arrangement is clearly not the same as a traditional game of tag where only one person does the chasing, players look out and run away from only one chaser, and once tagged, that person leaves the game. Instead, the activity described herein evolves into a situation where many zombies chase an increasingly smaller group of non-zombies who are trying to avoid the same fate. Indeed, as quoted above from his deposition, the assistant principal used the word “attack” to describe the game. This scenario reveals a possibly more chaotic and aggressive game than a regular game of tag. This case is not like Wuest v. Bd. of Educ. of Middle Country Cent. School Dist., 298 A.D.2d 578 [2d Dept. 2002] where the Second Department found that the alleged inadequate supervision was not a proximate cause of the plaintiff’s injuries in a collision between two players while they played a ball game. In that case, the court found that the injuries were the result of a spontaneous and unforeseeable act committed two students when they collided in an attempt to control the ball. However, here it is not established as a matter of law that injury to a student is unforeseeable when this game is played in the manner the submissions of the parties suggest. Accordingly, considering the circumstances underlying this action and the evidence submitted, summary judgement is precluded. Therefore, Defendants’ motion for summary judgment as to liability and proximate cause on the claim of negligent supervision is denied. Defendants also claim that they are entitled to summary judgment because A.V. assumed the risk of injury in participating in the game. It is well established that “(p)ursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, ‘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’” (Weinberger v. Solomon Schechter Sch. of Westchester, 102 A.D.3d 675, 677 [2d Dept. 2013] [internal citations omitted]; Philippou v. Baldwin Union Free School Dist., 105 A.D.3d 928 [2d Dept. 2013]; Berrin v. Inc. Vil. of Babylon, 186 A.D.3d 1598 [2d Dept. 2020]). “However, ‘a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks’” (Philippou v. Baldwin Union Free School Dist., 105 A.D.3d 928, at 929 [2d Dept. 2013] citing Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658 [1989]; see Schmidt v. Massapequa High School, 83 A.D.3d 1039 [2d Dept. 2011]). Thus, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport (see Custodi v. Town of Amherst, 20 N.Y.3d 83, at 88 [2012]; Morgan v. State of New York, 90 N.Y.2d 471, 485 [1997]; Brown v. Roosevelt Union Free Sch. Dist., 130 A.D.3d 852, 854 [2d Dept. 2015]; Berrin v. Inc. Vil. of Babylon, 186 A.D.3d 1598). The Court of Appeals holds that “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” (Morgan v. State of New York, 90 N.Y.2d 471, at 486 quoting Maddox v. City of New York, 66 N.Y.2d 270, 278 [1985]; see Toro v. New York Racing Assn., Inc., 95 A.D.3d 999, 1000 [2d Dept. 2012]; Calouri v. County of Suffolk, 43 A.D.3d 456 [2d Dept. 2007]). Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are ‘unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’” (Morgan v. State of New York, 90 N.Y.2d 471, at 485 quoting Owen v. R.J.S. Safety Equip., 79 N.Y.2d 967, 970 [1992]; Weinberger v. Solomon Schechter Sch. of Westchester, 102 A.D.3d 675). However, “[i]f the risks are known by or perfectly obvious to the player, he or she has consented to them and the defendant has discharged its duty of care by making the conditions as safe as they appear to be” (J.R. v. City of New York, 170 A.D.3d 1211 [2d Dept. 2019] [internal citation omitted]). Based on the evidence submitted, the Court finds that Defendants failed to establish, prima facie, that Plaintiff assumed the risk of injury by participating in the zombie tag game. Defendants failed to show that they, by offering the game played under the circumstances herein, did not unreasonably increase the risk of injury inherent in a typical tag game. Furthermore, the court finds that Defendants did not establish, as a matter of law, that A.V., a ten-year-old, knew the risks of injury in participating in this game under these circumstances and even if he could, had the capacity to assume the risk. As previously discussed, this activity was not a typical game of tag. As described herein, the game may give rise to a heightened response in these young players to flee for fear of turning into zombies. Thus, it is for the trier of fact to determine whether the game unreasonably increased risk of injury. Also relevant to this determination are factors previously mentioned which include the number of players involved in the game, the mixed age group and the progressive number of “zombie” chasers in the game and game rules. In light of these circumstances, Defendants fail to establish their entitlement to summary judgment as a matter of law based on an assumption of risk defense and thus it remains a question for jury. Lastly, the City of New York and the Department of Education are separate legal entities, and the City cannot be held liable for torts committed by the DOE and its employees (see NY Education Law §2551; Matter of Allende v. City of New York, 69 A.D.3d 931, 932 [2d Dept. 2010]; Miner v. City of New York, 78 A.D.3d 669 [2d Dept. 2010]). The gravamen of Plaintiffs’ Complaint against the City is that the City was negligent in its supervision of plaintiff. However, Plaintiffs may not maintain an action against the City because the City was merely an out of possession landowner of the school building on the date of Plaintiff’s alleged incident. Insofar as the care, custody and control of public schools and the supervision of students entrusted in its care lies with the DOE, a distinct legal entity from the City. Therefore, the City of New York’s motion for summary judgment is Granted and the action against the City of New York is dismissed. This constitutes the Decision and Order of the Court. Dated: March 10, 2022
