SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the defendant school district could not have foreseen the incident in which the plaintiff’s high school classmate injured plaintiff in gym class. The classmate put plaintiff in a choke hold from behind and plaintiff fell to the floor on his face. The classmate’s violent behavior when he was younger, three years before the gym class incident, was deemed insufficient to put the school on notice of the classmate’s propensity for violence:

“In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Actual or constructive notice to the school of prior similar conduct is generally required because, obviously, school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily” … . Thus, “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … . “Summary judgment must be granted if the proponent makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,’ and the opponent fails to rebut that showing” … . …

Defendant’s submissions … established that there were no prior incidents and no history of any animosity between the two students … . Indeed, the classmate testified that he intended only to “horse around” and that he “[d]idn’t mean anything by it.” Moreover, the classmate had never engaged in disorderly, insubordinate, disruptive, or violent conduct in any of the gym teacher’s classes prior to the subject incident. … [W]e agree with defendant that the classmate’s overall disciplinary record is insufficient to create an issue of fact whether the subject incident could reasonably have been anticipated. Although the classmate had an extensive disciplinary history, the majority of the incidents involved insubordinate and disruptive behavior, and the instances of violent and endangering conduct occurred when the classmate was in sixth through eighth grade, with his last citation for violent conduct occurring in April 2009, i.e., three years prior to the subject incident when the classmate was in 11th grade … . We thus conclude that the classmate’s prior violent and endangering conduct was too remote to provide defendant with sufficiently specific knowledge or notice that the classmate posed a danger to other students in gym class … . Hale v Holley Cent. Sch. Dist., 2018 NY Slip Op 02033, Fourth Dept 3-23-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))/EDUCATION-SCHOOL LAW (STUDENT ON STUDENT ASSAULT, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))/ASSAULT, LIABILITY FOR THIRD PARTY (EDUCATION-SCHOOL LAW, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))/STUDENTS (ASSAULT, SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT))