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PLAINTIFF-STUDENT’S CHEMICAL BURNS WERE CAUSED BY THE INTENTIONALLY WRONGFUL, SPONTANEOUS, UNFORESEEABLE ACTS OF THIRD PARTIES OVER WHOM DEFENDANT SCHOOL HAD NO CONTROL OR AUTHORITY; STUDENTS HAD APPARENLY PUT DRANO IN A WATER BOTTLE WHICH PLAINTIFF KICKED; TWO-JUSTICE DISSENT ARGUED THE SCHOOL DID NOT MEET ITS BURDEN OF PROOF ON ITS LACK OF NOTICE (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined defendant charter school [Mission] did not have notice of the dangerous condition which allegedly caused plaintiff-student’s chemical burns. Plaintiff kicked a plastic water bottle which had Drano in it, called a Drano bomb. Plaintiff alleged school personnel knew or should have known other students were making the Drano bombs:

The court properly granted Mission’s summary judgment motion, even assuming that a triable issue exists as to whether plaintiff was participating in Mission’s afterschool program at the time she was injured. Plaintiff testified that, before she was injured, she had seen other children, who were not participating in Mission’s afterschool program, on a different basketball court in the public park pouring a liquid into a Poland Spring bottle, not a Vitamin Water bottle. Plaintiff theorizes that Mission’s staff should have observed the conduct of these children and intervened to stop them. However, plaintiff’s own testimony, on which Mission was entitled to rely to satisfy its prima facie burden on the summary judgment motion, established that the actions of the children — even indulging the speculative assumption that they created the Drano bomb that later injured plaintiff — were the intentionally wrongful, spontaneous, and unforeseeable acts of third parties over whom Mission had no control or authority … .

From the dissent:

Mission’s motion presented no evidence whatsoever from any of its employees, teachers, supervisors, or in the form of records from the afterschool program. Mission consequently failed to address, in the first instance, the issue of whether it had “notice of the dangerous conduct which caused injury” … . Under the circumstances, Mission’s reliance on the testimony of other parties was insufficient to carry its prima facie burden. S. G. v Harlem Vil. Academy Charter Sch., 2023 NY Slip Op 01069, First Dept 2-28-23

Practice Point: Here the school successfully argued the plaintiff-student’s chemical burns were caused by the intentionally wrongful, spontaneous, and unforeseeable acts of other children over whom the school had no control. Plaintiff kicked a water bottle which had Drano in it (a Drano bomb). Two dissenters argued the school did not present sufficient evidence of its lack of notice.

 

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