School District Did Not Owe Special Duty to Plaintiff Injured in Fight After Hours on School Grounds; Failure to Lock Gate Not Proximate Cause of Injury

Plaintiff was assaulted on an athletic filed owned by defendant school district while in a group which was on the field without permission at 9:30 pm. The plaintiff alleged the school district was negligent in not providing security and in not locking the gates to the field. The Second Department determined the school district owed no special duty to the plaintiff and the failure to lock the gates was not the proximate cause of the injury:

The “provision of security against physical attacks by third parties . . . is a governmental function . . . and . . . no liability arises from the performance of such a function absent a special duty of protection” … . This special duty arises when a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies on the direct assurances of the municipality’s agents … .

… The mere provision of security does not give rise to a special duty of protection …. The District established that it did not make direct assurances regarding security to the infant plaintiff and that he did not rely on the provision of security in deciding to congregate with others on the field. * * *

A public entity may not escape liability for negligent acts which it performs in a proprietary capacity and which are a proximate cause of an injury which was sustained as the result of a foreseeable act by a third party … . However, the District demonstrated, prima facie, that the failure to lock the gates accessing the field was not a proximate cause of the infant plaintiff’s injuries, since the assault here was not a foreseeable act. In opposition, the plaintiffs failed to raise a triable issue of fact. Weisbecker v West Islip Union Free Sch Dist, 2013 NY slip Op 05743, 2^nd Dept 8-28-13