School’s Knowledge that Infant-Plaintiff Was Being Taunted and Bullied Did Not Constitute Notice that Another Student Would Act Violently Toward Infant-Plaintiff—Supervision Could Not Have Prevented the Sudden Action by the Student Who Pushed Infant-Plaintiff

The First Department, over a dissent, determined the defendant New York City public school was entitled to summary judgment dismissing infant-plaintiff’s “negligent supervision” complaint. Infant-plaintiff had been taunted and bullied by a fellow student, referred to in the decision as WEM. Infant-plaintiff was injured when WEM pushed him into a bookcase. Although infant-plaintiff’s teacher had been notified of WEM’s bullying on the day of the incident, and the school administration had been notified infant-plaintiff was being taunted and bullied by (unidentified) students, the majority concluded the school was not on notice that WEM would act violently toward infant-plaintiff, and, even if the school had been so notified, the sudden incident could not have been prevented by supervision. The majority wrote:

Initially, while “schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” …, “unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school’s liability in negligence absent actual or constructive notice of prior similar conduct” … . Here, the record contains no evidence that the school had notice that WEM had a proclivity to engage in physically aggressive conduct. The evidence that plaintiff had complained to his teacher and others that WEM was “picking on him” and calling him names, and that his mother had called the principal’s office and reported that some unidentified boys were “picking on her son,” when viewed in the light most favorable to plaintiff, shows only that the school knew that WEM had been picking on plaintiff verbally. Knowledge of such taunting, however, did not give the school “sufficiently specific knowledge or notice” of “prior conduct similar to the unanticipated injury-causing act” by WEM to support a finding of actual or constructive notice of the risk that he would engage in violent or physically aggressive behavior against plaintiff … .

Summary judgment is also warranted because plaintiff has not raised an issue as to proximate causation. There is no non-speculative basis for finding that any greater level of supervision than was provided would have prevented the sudden and spontaneous altercation between the two students. “Schools are not insurers of safety” and “cannot reasonably be expected to continuously supervise and control all movements and activities of students” … . Emmanuel B. v City of New York, 2015 NY Slip Op 06750, 1st Dept 9-8-15