In Boland v. North Bellmore Union Free Sch. Dist., the Appellate Division, Second Department reversed a denial of summary judgment for defendant. The court found that plaintiff’s opposition, which contained an expert citing to the American Society of Testing Material and Consumer Product Safety Commission was improperly considered by the lower court.  The appellate decision held “these standards…are guidelines and not mandatory, and are insufficient to raise a triable issue of fact regarding negligent installation or maintenance.

The case involved a student that was injured when she fell from an apparatus in the defendant’s school playground during recess. The child and her mother filed a lawsuit in Nassau County Supreme Court against the school district, alleging negligent training and supervision and negligent maintenance of the playground.

Once the lawsuit was filed, the defendant school district filed a motion for summary judgment, asking the Court to dismiss the lawsuit.  In opposition to the motion, the plaintiffs  submitted an expert report that found that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet American Society of Testing Material standards or standards established by the Consumer Product Safety Commission.

The Supreme Court granted part of the motion, dismissing the allegations of negligent training and supervision, but the Court denied the motion to dismiss the allegation of negligent maintenance of the playground, based upon the expert report submitted by the plaintiffs.

On appeal, the Appellate Division, Second Department found that the Supreme Court’s ruling dismissing the negligent training and supervision claim was correct because school district demonstrated that it provided adequate training of its staff and playground supervision, and that the level of training or supervision was not a proximate cause of the accident.   However, the Appellate Division found that the Supreme Court incorrectly denied the motion to dismiss the negligent maintenance claim.  The Appellate Division reversed the Supreme Court’s findings, and held that the defendant established its prima facie entitlement to judgment as a matter of law.  The appellate decision notes that the defendant submitted evidence which demonstrated that it adequately maintained the playground and that it did not create an unsafe or defective condition.  Accordingly, Appellate Division found that the Supreme Court should have granted that branch of the defendant’s motion, which was for summary judgment dismissing so much of the complaint as alleged negligent maintenance of its premises, despite the plaintiff’s expert’s reliance on the guidelines.

Thanks to George Parpas for his contribution to this post.