
    Clifford Decker, Individually and as Guardian ad Litem of Lorraine Decker, an Infant, Respondent, v. Dundee Central School District, Appellant.
    Argued April 28, 1958;
    decided June 25, 1958.
    
      Paul Reed Taylor for appellant.
    
      
      Albert J. Rubin for respondent.
   Fboessel, J.

After eating luncheon in the school cafeteria, the 10-year-old infant plaintiff was excused by her teacher to “go out and play ’ ’. She and her companions went to the bleacher stand in the playground area on the school grounds, where a number of informal baseball games were in progress. The bleachers were located about 1,000 feet from the school building, and consisted of six tiers, five feet high. Plaintiff and her friends had previously played around the bleachers during other luncheon recesses and had jumped off from the highest tier. On the day in question, in an attempt to jump from the top tier, plaintiff caught her foot and fell, fracturing her left humerus.

No teacher was supervising the. play area then or at any previous time during the noon recesses. The supervising teacher was on the driveway next to the school, some 1,000 feet away, because of the ‘ hazard there of parents driving in to bring children back at noon ’ ’.

The Trial Judge charged the jury, without exception, that defendant school board had a duty under the law (Education Law, § 1709, subd. 16) to provide adequate supervision within the schoolyard, that it was for the jury to decide whether this duty had been breached and, if so, whether the failure to provide adequate supervision was the proximate cause of the accident. He also charged correctly with respect to contributory negligence.

The duty of the board as to supervision, unlike that of common school district trustees (§ 1604, subd. 8), is unqualified, and has been construed as mandatory (Selleck v. Board of Educ., 276 App. Div. 263, 266, motion for leave to appeal denied 300 N. Y. 764; Garber v. Central School Dist. No. 1, 251 App. Div. 214, 219-220; see Miller v. Board of Educ., 291 N. Y. 25, 31). The jury could reasonably infer that, had there been adequate supervision in the past, the danger would have come to the attention of some person in authority, and steps taken to prevent its repetition. We may not say as a matter of law that it was not dangerous for a little girl to jump from a height of five feet — a height taller than she — and that a supervisor observing such an activity would have been under no duty to warn the child against it; nor may we say that she was guilty of contributory negligence as a matter of law (see Camardo v. New York State Rys., 247 N. Y. 111, 115, 117-118; see, also, Collentine v. City of New York, 279 N. Y. 119, 127).

We would therefore affirm were it not for an error in computing interest on the verdict at the rate of 6%. Under section 3-a of the General Municipal Law, 5% is the maximum rate of interest allowable on an accrued claim or judgment against a municipal corporation, which is defined to include a school district.

The judgment appealed from should be modified by computing interest on the verdict at the rate of 3%, and, as so modified, affirmed.

Burke, J.

(dissenting). The plaintiff pupil, relying on a duty imposed on the defendant by law (Education Law, § 1709, subd. 16) to provide adequate supervision within the schoolyard, asserts that when she has given evidence indicating that on the day of the accident the supervising teacher was stationed approximately 1,000 feet from the scene of the accident, the inference that the absence of the supervisor from the immediate area was the proximate cause of the injury was permissible. The difficulty is that this principle has application only in a case where the conduct of the pupil is foreseeable or where the defendant neglected to exercise the reasonable and ordinary care which defendant owed the plaintiff. This is not such a case.

On this record there is no question of adequacy of supervision. The evidence that the plaintiff and her school friends had jumped from the top tier of the low bleachers, a distance of about 5 feet, without injury, during recess on prior occasions, fully rebuts any claim that such an activity was dangerous. Therefore, had a supervisor been present on the former occasions there would be no reason to warn the children against continuing the practice. The risk of injury was introduced into the normal activity of children of their age by the daring suggestion, later acted upon, of the plaintiff that they jump off backwards. The reckless attempt by the plaintiff to accomplish this foolhardy feat was the proximate cause of the injury. Such an act being unforeseeable it could not have been expected or prevented. So far as the proof shows, the alleged negligence of the defendant in failing to provide adequate supervision in the schoolyard had no connection with the accident. Even vigilant supervision could not anticipate the unorthodox impulsive self-instigated act of the plaintiff. The evidence is, therefore, insufficient as a matter of law to make a prima facie case.

Accordingly the order of the Appellate Division reinstating the verdict should be reversed and the complaint dismissed.

Chief Judge Conway and Judges Desmond and Fuld concur with Judge Froessel ; Judge Burke dissents in an opinion in which Judges Dye and Van Voorhis concur.

Judgment modified in accordance with the opinion herein and, as so modified, affirmed.  