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SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant school district’s motion for summary judgment in this third party assault case should have been granted. Infant plaintiff, Deb B, a special education student, alleged she was sexually assaulted by another special education student outside the school building before classes started. Deb B.’s education plan did not provide for a school aide to escort her to school from the bus or between classes:

After arriving at school one morning, she entered the building in the company of JG, another special education student who had been a passenger with her on the same school bus. After stopping by the school’s cafeteria, and before the first-period class, JG asked Deb B. to accompany him outside the school building to the bleachers near the athletic field, and Deb B. agreed to do so. Deb B. alleges that JG then sexually assaulted her while they were on the bleachers. …

“Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a special duty’ to the students themselves” … . Thus, schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . “Schools are not, however, insurers of students’ safety and cannot reasonably be expected to continuously supervise and control all movements and activities of students'” … . “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” … . …

Here, in support of their motion for summary judgment, the defendants submitted evidence that Deb B.’s individualized education plan did not provide for a school aide to escort her from the school bus to the school building or to escort her throughout the building as she moved between classes. Deb B.’s mother testified that she was aware that Deb B. was not so escorted, and that she had no expectation that this would be done. The evidence submitted by the defendants also indicated that Deb B. had no history of leaving the school building improperly. Finally, neither the complaint nor the bill of particulars alleged that JG had a propensity to engage in dangerous conduct, or that the defendants knew or should have known of any such propensity … . Deb B. v Longwood Cent. Sch. Dist., 2018 NY Slip Op 07280, Second Dept 10-31-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, THIRD PARTY ASSAULT, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/ASSAULT, THIRD PARTY (NEGLIGENCE, EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/THIRD PARTY ASSAULT (EDUCATION-SCHOOL LAW, NEGLIGENCE, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))

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MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE,... ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION...