Article by Capehart Scatchard

By Betsy G. Ramos, Esq.

The plaintiff Brianna Ackerman, a minor, was injured during recess, while using her middle school’s playground merry-go-round. In Ackerman v. Franklin Twp. Board of Education, 2014 N.J. Super. Unpub. LEXIS 2978  (App. Div. Dec. 30, 2014), the plaintiff argued that the merry-go-round was a dangerous condition of the defendant Board of Education’s property and that defendant should be liable for negligent supervision. The trial court granted summary judgment and the plaintiff appealed.

The minor plaintiff, while a 6^th grade student at Franklin Township Middle School, along with her classmates, was using the merry-go-round located on the playground during recess. She slipped off when she had bent over to tie her sneaker and another girl got on. She landed on her right arm and fractured her humerus.

There had been 8 prior instances where students were injured while using the merry-go-round. Some of the students were injured when they disregarded the posted rules for the safe use of the merry-go-round. The minor plaintiff, however, testified the safety rules were never discussed with her and they were not posted or regularly enforced because students using the merry-go-round were not always directly supervised. While the nurse contended there were usually up to 6 teachers and two aides on the playground during recess, the minor maintained that only 2 aides were present the day she was injured.

The Appellate Division rejected the plaintiff’s argument that the merry-go-round constituted a dangerous condition of public property. It found that the Legislature did not intend to impose liability for a condition merely because danger may exist. The plaintiff was injured during her use of equipment on the property, not from a condition of the property itself.

However, the Appellate Division did find that a fact question existed as to whether there was negligent supervision. The defendant has a duty to supervise its students at recess. The question as to whether that duty is breached is a question for the factfinder. A factual issue existed as to how many adults were supervising the children on that date. Because there was a fact question as to the level of supervision, the Appellate Division remanded the case back to the trial court for a trial as to the issue of supervision.