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INFANT PLAINTIFF WAS ALLEGEDLY SEXUALLY ABUSED BY ANOTHER STUDENT ON A PRIVATE BUS TAKING THE CHILD HOME FROM SCHOOL, CERTAIN NEGLIGENCE CAUSES OF ACTION AGAINST THE SCHOOL SURVIVED A PRE-ANSWER MOTION TO DISMISS, NEGLIGENT SUPERVISION, HIRING AND TRAINING CAUSES OF ACTION DISMISSED BECAUSE THE EMPLOYEES WERE ALLEGED TO HAVE BEEN ACTING WITHIN THE SCOPE OF EMPLOYMENT, TWO DISSENTING JUSTICES ARGUED THE STUDENT WAS NO LONGER IN THE CUSTODY AND CONTROL OF THE SCHOOL WHEN THE ABUSE OCCURRED ON THE BUS (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined certain negligence causes of action against the school properly survived a pre-answer motion to dismiss. Infant plaintiff, a special needs student, was allegedly sexually abused by another student on a private bus which provided transportation from the school under a contract with the city. All the justices agreed that the negligent hiring, supervision and training causes of action were properly dismissed because the relevant employees were alleged to have been acting within the scope of their employment, rendering the employer liable under the doctrine of respondeat superior. The dissenters argued that the child was no longer in the custody of the school when the child was on the private bus:

From the Dissent: “[A] school has a duty of care while children are in its physical custody or orbit of authority” (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 378 [1995]), which generally “does not extend beyond school premises”… . A school continues to have a duty of care to a child released from its physical custody or orbit of authority only under certain narrow circumstances, specifically, where the school “releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating” (Ernest v Red Cr. Cent. Sch. Dist., 93 NY2d 664, 672 [1999], rearg denied 93 NY2d 1042 [1999]… ).

In determining that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence, the majority effectively ignores the language in Ernest limiting a school’s duty of care to instances where “it releases a child without further supervision”… . Those circumstances do not exist here inasmuch as the child was released to the care of the bus company, which was then responsible for the “further supervision” of the child (id.). The majority also ignores the precedent set by Chainani, which states that a school that has “contracted-out responsibility for transportation” to a private bus company “cannot be held liable on a theory that the children were in [the school’s] physical custody at the time of injury” … . Therefore, defendants’ duty of care ended when the child was released to the physical custody of the bus company, especially where, as here, the bus company was hired by the City and had no contractual relationship with the School. Brown v First Student, Inc., 2018 NY Slip Op 08776, Fourth Dept 12-21-18

 

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