258 A.D. 813 | N.Y. App. Div. | 1939
Judgment for plaintiff in an action to recover damages for injuries sustained by a high school student by reason of having been struck in the eye by a rubber ball while within the school yard, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. While the defendant is charged with the duty of providing for adequate supervision of activities within the school yard (Education Law, § 310, subd. 15; § 868; Collentine v. City of New York, 279 N. Y. 119; Augustine v. Town of Brant, 249 id. 198; Garber v. Central School District No. 1, .251 App. Div. 214), its obligation was fulfilled when it provided for adequate supervision in the person of one or more competent instructors. This it did. It is not responsible for the individual negligence of one of its supervisors, as the doctrine of respondeat superior is inapplicable. (Katterschinsky v. Board of Education, 215 App. Div. 695; Herman v. Board of Education, 234 N. Y. 196; Johnson v. Board of Education, 210 App. Div. 723; Wahrman v. Board of Education, 187 N. Y. 331; Hamburger v. Cornell University, 240 id. 328.) A distinction exists with respect to this obligation and that of defendant to repair and maintain structures. (Lessin v. Board of Education, 247 N. Y. 503, 511; Friedman v. Board of Education, 262 id. 364, 366; cf. Hoose v. Drumm, 281 id. 54, 58.) We are furthermore of opinion that no negligence on the part of an instructor was shown, in the light of the fact that the object which struck the infant plaintiff was a rubber ball, which was not shown to have been of an inherently dangerous nature. Hagarty, Carswell, Adel and Taylor, JJ., concur; Lazansky, P. J., concurs in result.