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LACK OF SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF STUDENT’S FALL, PLAINTIFF WAS ENGAGING IN AGE-APPROPRIATE BEHAVIOR TAKING TURNS JUMPING OVER A KNEE-HIGH FENCE WHEN SHE FELL AND WAS INJURED, SCHOOL DISTRICT’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the school district’s motion for summary judgment in this school recess injury case was properly granted. Plaintiff, who was in eighth grade, was injured when her shin struck a knee-high fence as she attempted to jump over it, causing her to fall on a concrete walkway. She had been taking turns with her friends jumping the fence for 10 or 15 minutes:

The plaintiff testified at a General Municipal Law § 50-h hearing and her deposition that she did not see any school personnel outside the school building either before or at the time of the incident. …

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . However, “[s]chools are not insurers of safety, . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students” … . Here, the defendant established … that the plaintiff was engaged in an age-appropriate activity that did not constitute dangerous play, and that the alleged lack of supervision was not a proximate cause of the accident … . Chiauzzi v Sewanhaka Cent. High Sch. Dist., 2019 NY Slip Op 02310, Second Dept 3-27-19

 

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STUDENT ON STUDENT ASSAULT WAS NOT FORESEEABLE, THEORIES IN THE PLEADINGS WHICH WERE NOT MENTIONED IN THE NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should have been granted in this student-on-student assault case. The assault arose abruptly and and lasted 20 to 30 seconds and was not foreseeable. In addition, the theories of liability not mentioned in the notice of claim, but asserted in the pleadings, should have been dismissed:

… [T]he School District established, prima facie, that the alleged assault by the fellow student was an unforeseeable act and that the School District had no actual or constructive notice of prior conduct of the students involved here which was similar to the subject incident … . Moreover, the School District established, prima facie, that “the incident occurred in so short a period of time that any negligent supervision on its part was not a proximate cause of the infant plaintiff’s injuries” … . …

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . However, if the defendant is a municipality, the plaintiff may not raise in the complaint causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that “substantially alter” the nature of the claim or add a new theory of liability … . … By submitting evidence that the notice of claim did not mention … causes of action and legal theories, the School District established its … entitlement to judgment as a matter of law dismissing all of the causes of action, other than negligent supervision, that were asserted in the complaint and bill of particulars against the School District … . Meyer v Magalios, 2019 NY Slip Op 02336, Second Dept 3-27-19

 

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QUESTION OF FACT WHETHER SCHOOL BUS DRIVER AND MONITOR TOOK APPROPRIATE STEPS AFTER THE FIGHT IN WHICH PLAINTIFF STUDENT WAS INJURED BROKE OUT ON THE BUS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent supervision action against the school bus company and the school district should not have been dismissed. Plaintiff (J.W.) was injured by another student on the bus:

… [T]he bus company defendants and the school district established, prima facie, that they did not have sufficiently specific knowledge or notice of the dangerous conduct which caused injury … . However, in opposition, the plaintiff raised triable issues of fact as to whether J. W.’s injuries were a foreseeable consequence of the bus driver and bus monitor’s alleged failure to respond appropriately as the events unfolded … , and whether the bus driver and bus monitor took “energetic steps to intervene” in the fight … . Accordingly, the Supreme Court should have denied the motion of the bus company defendants and the school district for summary judgment dismissing the complaint insofar as asserted against them. Williams v Student Bus Co., Inc., 2019 NY Slip Op 02146, Second Dept 3-20-19

 

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NYC CHARTER DID NOT GIVE THE PUBLIC ADVOCATE AUTHORITY FOR A SUMMARY INQUIRY INTO THE ADEQUACY OF SOFTWARE USED TO TRACK STUDENTS WITH INDIVIDUALIZED EDUCATION PROGRAMS, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, over a full-fledged, two-justice, dissenting opinion, reversing Supreme Court, determined that the NYC Charter did give the Public Advocate the power to conduct a summary inquiry into the adequacy of computer software designed to keep track of students with Individualized Education Programs (IEP’s) and to seek appropriate funding from Medicaid:

We agree with [Matter of Green v Giuliani (187 Misc 2d at 138)] that [NYC Charter] section 1109’s reach includes not only corruption, but “all forms of official misconduct.”… Arguably, in light of Green, section 1109’s reach continues to evolve over time to include areas not limited to corruption. The question that remains is whether the section 1109 phrase “any alleged violation or neglect of duty” should be broadened so as to bring within its reach all forms of conduct, including acts that amount to administrative inefficiency, deficiency, or mismanagement. We believe it should not, mindful of the admonition uttered over a century ago: “It would be intolerable if . . . all the heads of departments of the city could be haled into court and cross-examined by disaffected taxpayers, or even by some other hostile official, with no result except publicity. It is much better that proceedings of this kind should be confined to the legitimate purposes of the law” … .

Section 1109 is set forth in Chapter 49 of the Charter, entitled “Officers and Employees.” Neither that chapter, nor the Charter itself, defines “violation” or “neglect of duty.” In the absence of a clear definition, either by statute or case law, we are guided by dictionary definitions because they are “useful guideposts” in determining the meaning of a statutory word or phrase … . * * *

… .[W]e find no legal basis to expand section 1109’s reach beyond allegations that clearly fall within the plain meaning of a “violation” or a “neglect of duty…”… . … [P]etitioner’s allegations of administrative mismanagement, namely, the inefficient governmental administration of a computer software … are not sufficient bases to support the instant section 1109 judicial summary inquiry application.  Matter of James v Fariña, 2019 NY Slip Op 01729, First Dept 3-12-19

 

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QUESTIONS OF FACT ABOUT THE TYPE OF STICKS AND BALLS USED IN THE LACROSSE GAME AND WHETHER THE FAILURE TO PROVIDE GOGGLES WAS THE PROXIMATE CAUSE OF PLAINTIFF-STUDENT’S EYE INJURY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the school district’s motion for summary judgment should not have been granted in this lacrosse injury case. There were questions of fact about the type of sticks and balls used such that protective goggles were required:

… [W]e find that a triable issue of fact exists as to the nature of the lacrosse game played by the students and whether protective goggles should have been used by the students based upon the game they were playing. Furthermore, under the circumstances of this case, a jury must determine whether defendants’ breach of their duty to provide protective goggles was a proximate cause of the infant’s eye injury … . Powers v Greenville Cent. Sch. Dist., 2019 NY Slip Op 01477, Third Dept 2-28-19

 

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COLLEGE DID NOT OWE A DUTY OF CARE TO TWO STUDENTS WHO DIED IN A FIRE IN THE OFF-CAMPUS HOUSE THEY WERE RENTING (SECOND DEPT).

The Second Department determined the college (Marist College) did not owe a duty of care to two students (Kerry and Eva) who died in a fire in an off-campus house (Brennan house). The house was on a private-off-campus-housing list made available to students by the college:

“The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?” … . In the context of this action, a critical consideration in determining whether such a duty exists is whether Marist College’s relationship with either the Brennans or Kerry and Eva placed the college in the best position to protect against the risk of harm … . Also relevant is the principle that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully” … . …

… .Marist College did not owe a duty of care to Kerry and Eva. Contrary to the plaintiffs’ argument, Marist College demonstrated … that it did not owe a duty to ensure that the off-campus housing listed on its website, which included the Brennan house, complied with all relevant fire safety standards. Even if, in theory, Marist College could have refused to list landlords on its website unless each landlord’s off-campus housing met all relevant fire safety laws and regulations, imposing such a requirement on the college is simply not warranted because the college is not “in the best position to protect against the risk of harm”… . In this regard, it bears recalling that the doctrine of in loco parentis has no application at the college level … . Adult students who chose to live off campus, as well as the private landlords with whom they enter into a contractual relationship, are in the best position to ensure that off-campus apartments and houses have the required number of smoke detectors and other fire safety features. While the risk of fire is all too foreseeable—often with tragic consequences, as this case demonstrates—”[f]oreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist” … .

… .Marist College also demonstrated … that it did not assume a duty to ensure that the Brennan house was safe for Kerry and Eva to live in, as the college did not engage in any conduct that may have induced Kerry and Eva to forgo some opportunity to avoid risk, thereby placing them “in a more vulnerable position than [they] would have been in had [Marist College] done nothing” … . In fact, the evidence shows, among other things, that Kerry and Eva found the Brennan house because they knew some of the students who had been renting it. Fitzsimons v Brennan, 2019 NY Slip Op 01200,  Second Dept 2-20-19

 

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TEACHER ACQUIRED TENURE BY ESTOPPEL (FIRST DEPT).

The First Department determined petitioner, a special education teacher, acquired tenure by estoppel:

“Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term” … . Here, petitioner obtained tenure by estoppel when she continued to be employed by the DOE and failed to receive any notice regarding the DOE’s decision regarding her future by the expiration of her probationary period … . In addition, the DOE failed to indicate to petitioner that the temporary assignment to perform clerical duties for the Committee on Special Education would not count toward her probationary period. Thus, petitioner’s decision to accept the temporary reassignment did not “serve to disrupt that teacher’s probationary period, nor . . . lead to an increase in the length of that probationary period” … . Matter of Wilson v Department of Educ. of the City of N.Y., 2019 NY Slip Op 01161, First Dept 2-14-19

 

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NURSING SCHOOL BREACHED ITS IMPLIED CONTRACT WITH GRADUATED STUDENTS WHO WERE DEEMED INELIGIBLE FOR THE LICENSE EXAMINATION AND WERE NOT PERMITTED TO ENROLL IN A COLLEGE PROGRAM (FIRST DEPT).

The First Department determined defendant nursing school, AUA, breached an implied contract with the graduated students. but not with the students who withdrew from the program:

In a prior decision in this action, this Court expressly recognized that there were specific promises which established the existence of an implied contract between plaintiffs and defendant AUA when it stated that “AUA’s fact book’ aimed at prospective students promised, inter alia, that AUA graduates would be eligible to take the NCLEX [National Council License Examination for Registered Nurses], and, upon passing that exam, automatically matriculate’ into Lehman College’s one-year RN to BSN program'” … .

The record clearly establishes that defendant AUA breached these promises with regard to the graduated plaintiffs as it showed that they were (1) not eligible to take the NCLEX exam until after December 13, 2011 (when the New York State Education Department [NYSED] admitted the mistake and permitted AUA graduates to sit for the exam), and (2) were not permitted to enroll in Lehman College until 2011 when they enrolled in a standard BSN program (not the ASN to BSN program AUA had promised). Supreme Court properly found that a reasonable period of time should be inferred following graduation … . However, because the graduated plaintiffs did not have the opportunity to take the NCLEX exam or enroll in Lehman College’s ASN to BSN program in a timely fashion after graduation from AUA, AUA breached the implied contract. The graduated students also established the element of damages by submitting affidavits wherein each averred that they graduated from AUA and shortly thereafter, applied to take the NCLEX but were denied because all AUA students were “ineligible” to take the exam preventing them from obtaining their nursing license and begin their profession. Jeffers v American Univ. of Antigua, 2019 NY Slip Op 00987, First Dept 2-7-19

 

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EVIDENCE SUBMITTED WITH REPLY PAPERS SHOULD HAVE BEEN CONSIDERED, NEGLIGENT MAINTENANCE CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS PLAYGROUND INJURY CASE (SECOND DEPT).

The Second Department determined Supreme Court should have considered evidence submitted by the defendant in its reply papers and further determined that the negligent maintenance cause of action properly survived summary judgment in this playground injury case. Infant plaintiff was injured when she fell from playground equipment during recess. The negligent supervision cause of action was dismissed. But there was evidence the area beneath the playground equipment was dangerous:

… [W]e disagree with the Supreme Court’s decision to not consider the evidence submitted by the defendant in its reply papers. “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to introduce new arguments or new grounds for the requested relief” … . The evidence submitted by the defendant in its reply papers addressed arguments made by the plaintiff and the plaintiff’s expert in opposition to its motion. Thus, the court should have considered the evidence. …

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged negligent maintenance of its premises by submitting evidence which demonstrated that it adequately maintained the playground, and that it did not create an unsafe or defective condition … . In opposition, however, the plaintiff raised a triable issue of fact by the submission of her expert’s affidavit which opined, in part, that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet standards established by the Consumer Product Safety Commission (see General Business Law § 399-dd). Boland v North Bellmore Union Free Sch. Dist., 2019 NY Slip Op 00849, Second Dept 2-6-19

 

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ALTHOUGH THE CITY OWED A SPECIAL DUTY TO A STUDENT WHO WAS STRUCK BY A CAR ATTEMPTING TO CROSS THE ROAD, THAT DUTY WAS FULFILLED WHEN THE CROSSING GUARD TOLD THE STUDENT TO WALK TO THE NEXT AVAILABLE CROSSWALK, THE STUDENT, HOWEVER, THEN ATTEMPTED TO CROSS WHERE THERE WAS NO CROSSWALK (SECOND DEPT).

The Second Department determined the city’s motion for summary judgment in this traffic accident case involving a student who had just left school was properly granted. The city owed a special duty to the student-plaintiff. A school crossing guard had stopped the plaintiff from crossing the street where there was no crosswalk and told her to walk to the next crosswalk. The plaintiff, however, attempted to cross where there was no crosswalk and was hit by a car. Any alleged negligent supervision was not the proximate cause of the student’s injury:

… [A] special duty existed between the City defendants’ crossing guard and the infant plaintiff … . Nevertheless, given that the crossing guard, inter alia, told the infant plaintiff to not cross 7th Avenue at an unsafe location and pointed the infant plaintiff to the crosswalk at 19th Street, the City defendants established, prima facie, that its employees did not breach their duty to the infant plaintiff. Moreover, the City defendants, while under a duty to adequately supervise the students in their charge, are not insurers of their safety … . The evidence submitted by the City defendants established, prima facie, that the infant plaintiff crossed 7th Avenue in the middle of the block where there was no intersection or crosswalk, and no traffic device affording her a right-of-way. Additionally, the infant plaintiff admitted that she attempted to cross the road “fast,” and that she did not look for oncoming traffic. Where an accident occurs so quickly that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury … . K.A. v City of New York, 2019 NY Slip Op 00861, Second Dept 2-6-19

 

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