School Not Liable for Three-Year-Old’s Failure to Get Off the Bus After Arrival at the School—Child Had Not Yet Entered the Orbit of the School’s Authority—Although School Voluntarily Undertook the Duty to Determine the Whereabouts of Absent Students, the Parents Were Not Aware of that Policy and Therefore Could Not Have Relied On It

The Second Department reversed Supreme Court and dismissed the complaint against a private school.  The infant plaintiff, a three-year-old with special needs, was left on the bus which transported him to school for six hours.  The Second Department determined the child had not yet entered the “orbit of” the school’s authority.  In addition, although the school voluntarily undertook to determine the whereabouts of absent children, there was no showing the child’s parents were aware of the policy:

A school’s duty to its students is dependent on its physical custody of those students (see Stephenson v City of New York, 19 NY3d 1031, 1033). Custody ceases when the student has passed out of the “orbit of” the school’s “authority” … . Here, it is undisputed that Nicholas never passed into the physical custody of the school, as he never left the bus. * * *

Voluntary conduct may give rise to liability, even if there would otherwise be no duty to act, if “the defendant’s affirmative action adversely affected the plaintiff and the defendant failed to act reasonably”… . In order for a party to be negligent in the performance of an assumed duty, however, the plaintiff must have known of and detrimentally relied upon the defendant’s performance, or the defendant’s actions must have increased the risk of harm to the plaintiff … . Arroyo v We Transp Inc, 2014 NY Slip Op 03965, 2nd Dept 6-4-14