No Negligence In School District’s, School’s and Attending Nurse’s Care of Child Who Died After Suffering an Allergic Reaction in School

In a full-fledged opinion by Justice Eng, the Second Department determined the action brought on behalf of a child who died in school after suffering an allergic reaction was correctly dismissed with respect to the Department of Education (DOE) and should have been dismissed with respect to the school and the attending nurse who was tasked with monitoring the child at school.  The lengthy opinion deals in depth with many topics including:  the DOE’s duty, the school’s duty, the nurse’s duty, the finding that the nurse was an independent contractor as opposed to an employee, and the proximate cause issue raised by the inability to determine what caused the allergic reaction.  The child was autistic and suffered from asthma and numerous severe allergies.  The DOE developed a plan (Individualized Education Program) which involved placement of the child in a private school equipped to care for children with special needs and the provision of a nurse who was with the child continuously during the school day.  The Second Department treated all the issues (including the adequacy of the medical care provided by the nurse) exhaustively and determined no questions of fact had been raised about the negligence of any of the defendants. Begley v City of New York, 2013 NY Slip Op 05867, 2nd Dept 9-18-13