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IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A SCHOOL DISTRICT, THE DISTRICT DEMONSTRATED A STUDENT’S SEXUAL ASSAULT OF PLANTIFF WAS NOT FORESEEABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined the defendant school district demonstrated a student’s sexual assault of plaintiff was not foreseeable:

… [D]efendant met its … burden on the motion by establishing that the “sexual assault against [plaintiff by the student] was an unforeseeable act that, without sufficiently specific knowledge or notice, could not have been reasonably anticipated” … , and plaintiff failed to raise a triable issue of fact … . Defendant’s submissions, including plaintiff’s testimony, established the undisputed fact that plaintiff and the student did not know each other and did not have any prior interactions before the sexual assault … . Although the student had an extensive and troubling disciplinary history that resulted in several detentions and suspensions, such history did not contain any infractions for physically aggressive conduct directed at other people, sexually inappropriate behavior, or threats of physical or sexual violence … .

… [W]hile the student’s history involved attendance issues, insubordination toward school staff, inappropriate verbal outbursts, being under the influence of drugs or alcohol, possession and sale of drugs, and academic problems, that history did not raise a triable issue of fact whether defendant had sufficiently specific knowledge or notice of the injury-causing conduct inasmuch as it was not similar to the student’s physically and sexually aggressive behavior that injured plaintiff … . “More significantly, [the student’s] prior history did not include any sexually aggressive behavior” … . We also agree with defendant that the court impermissibly drew an unsubstantiated and speculative inference that the student’s disclosure to a school social worker about being a victim of sexual abuse during his childhood, coupled with his substance abuse, should have provided defendant with notice of the student’s propensity to commit sexual assault … . Knaszak v Hamburg Cent. Sch. Dist., 2021 NY Slip Op 04441, Fourth Dept 7-16-21

 

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