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NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT).

The Second Department determined defendant Department of Education's (DOE's) motion for summary judgment in this negligent hiring, training, retention and supervision action was properly denied. The suit alleged sexual abuse of plaintiff-student by a school employee (Denice). Although the abuse did not take place on school premises, it was preceded by inappropriate conduct in the school, including touching:

… [T]he DOE defendants failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision of Denice. The DOE defendants' own submissions in support of their motion for summary judgment raised a triable issue of fact as to whether the DOE took the appropriate measures to evaluate Denice's employment and fitness at the time he was allowed to intern at the school… . Moreover, there is a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Denice “placed [Denice] in a position to cause foreseeable harm” … .

Generally, liability may not be imposed upon school authorities where all of the improper acts against a student occurred off school premises and outside school hours … . Here, however, the DOE defendants' submissions demonstrated that, although the sexual abuse ultimately occurred in the infant plaintiff's home, it was preceded by time periods when the infant plaintiff was alone with Denice during school hours on a regular basis. During these times, Denice engaged in inappropriate behavior, including physical touching. Thus, triable issues of fact exist regarding, inter alia, whether the DOE knew or should have known of such behavior and Denice's propensity for sexual abuse … . Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Second Dept 10-3-18\

NEGLIGENCE (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EDUCATION-SCHOOL LAW  (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EMPLOYMENT LAW  (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT)

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