¶1(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. *465The 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.
¶2On 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.
¶3Accordingly the order of the Appellate Division reinstating the verdict should be reversed and the complaint dismissed.
¶4Chief 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.
¶5Judgment modified in accordance with the opinion herein and, as so modified, affirmed.