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NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED.

The Second Department determined a negligent supervision action against a day care provider was properly dismissed. Infant plaintiff (Kevin) was hanging by his hands when a student pulled one of his hands off, causing him to fall:

 

The defendant, as a provider of day care services, was under a duty to adequately supervise the children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . In general, the duty of a day care provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances … . However, a child care provider cannot reasonably be expected to continuously supervise and control all movements and activities of the children in its care, and cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among those children … . To establish a breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of a fellow child, a plaintiff must show that the day care provider “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the accident was the result of a sudden and unforeseeable act of another child, and that it had no actual or constructive notice of prior similar conduct … . The defendant further established, prima facie, that the incident occurred in so short a period of time that its alleged lack of supervision was not a proximate cause of Kevin’s alleged injuries … . Lopez v D & D Day Care, Inc., 2016 NY Slip Op 01298, 2nd Dept 2-24-16

 

NEGLIGENCE (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/NEGLIGENT SUPERVISION (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/EDUCATION-SHCOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)/DAY CARE (NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED)

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INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL.

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should have been granted. Infant plaintiff was injured playing basketball when he struck the pole holding the hoop. The Second Department held the school district had demonstrated infant plaintiff assumed the risk of that injury:

 

The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity “is aware of the risks [inherent in the activity]; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “However, the doctrine will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … .

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging premises liability by demonstrating that the subject pole was open and apparent, that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard, that the defendant did nothing to conceal or unreasonably increase the risk, and that the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions … . Altagracia v Harrison Cent. Sch. Dist., 2016 NY Slip Op 01141, 2nd Dept 2-17-16

 

NEGLIGENCE (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/ASSUMPTION OF RISK (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/BASKETBALL (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/EDUCATION-SCHOOL LAW (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)

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COLLEGE’S DETERMINATION WAS NOT ARBITRARY AND CAPRICIOUS; AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF THE REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY.

The Fourth Department determined Supreme Court should not have anulled the respondent college’s ruling as arbitrary and capricious. The controversy concerned the hiring of a business manager by the student government (Brockport Student Government or BSG). Although BSG had the power to hire a manager at approximately $50,000 a year, the college, which must ultimately approve the hiring, rejected it and engaged a managing service for $20,000 less. Because the college’s ruling had a rational basis, it could not be deemed arbitrary and capricious simply because the reviewing court would have decided differently. The Fourth Department explained what “arbitrary and capricious” means:

 

…[T]the court erred in determining that their denial of BSG’s budget allocation for a business manager was arbitrary and capricious. It is well established that “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts . . . An agency’s determination is entitled to great deference and, [i]f the [reviewing] court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency” … . Here, we conclude that respondents’ discretionary determination to reject BSG’s proposed $49,800 salary for a business manager which was based on a comparison of the “hiring practices and compensation rates of other campus-affiliated organizations”… . Matter of Brockport Student Govt. v State Univ. of N.Y. at Brockport, 2016 NY Slip Op 01099, 4th Dept 2-11-16

 

ADMINISTRATIVE LAW (AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)/EDUCATION-SCHOOL LAW (COLLEGE’S REJECTION OF REQUEST BY STUDENT GOVERNMENT HAD A RATIONAL BASIS AND THEREFORE WAS NOT ARBITRARY AND CAPRICIOUS)/ARBITRARY AND CAPRICIOUS (RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)

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STUDENT ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE.

The Second Department, reversing Supreme Court, determined plaintiff, a high school varsity lacrosse player, assumed the risk of injury during lacrosse practice. Plaintiff alleged the goal was not properly covered by the net and his foot hit the base of the goal, causing him to twist his ankle and fall:

The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . This includes the construction of the playing surface and any open and obvious condition on it … . * * *

… Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. The defendant established, prima facie, that the plaintiff assumed the risk by voluntarily participating in lacrosse practice where the condition of the goal was not concealed and clearly visible … . Safon v Bellmore-Merrick Cent. High Sch. Dist., 2015 NY Slip Op 09418, 2nd Dept 12-23-15

NEGLIGENCE (STUDENT ATHLETE ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE)/EDUCATION-SCHOOL LAW (STUDENT ATHLETE ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE)/ASSUMPTION OF RISK (STUDENT ATHLETE ASSUMED RISK OF INJURY DURING LACROSSE PRACTICE)

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ASSUMPTION OF RISK DEFENSE DID NOT APPLY TO STUDENT-ATHLETE’S PARTICIPATION IN UNSUPERVISED “HORSEPLAY;” SCHOOL’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should not have been granted. Plaintiff student was injured when, during an unsupervised period of time prior to the beginning of football practice, a blocking sled was being misused to catapult players into the air. Plaintiff fractured both wrists. The Second Department held there was a question of fact re: the negligent supervision cause of action, and further held that the assumption of risk defense did not apply to the “horseplay” which resulted in plaintiff’s injury. With regard to assumption of the risk, the court wrote:

The doctrine of primary assumption of risk is most persuasively justified for its utility in facilitating ” free and vigorous participation in athletic activities'” … . By placing the risk of participation on the participants themselves, rather than on the sponsor, the doctrine encourages sponsorship, which leads to more opportunities to participate in sports or other recreational activities … . The doctrine of primary assumption of risk is not applicable to the conduct at issue in this case. …[T]he use of the blocking sled to catapult each other into the air is not the sort of “socially valuable voluntary activity” that the doctrine seeks to encourage … . Furthermore, the defendants did not establish that the commonly appreciated risks which are inherent in and arise out of the nature of football generally and flow from such participation on the football team included the risk of sustaining injury after being catapulted through the air by a blocking sled … . Duffy v Long Beach City Sch. Dist.. 2015 NY Slip Op 09065. 2nd Dept 12-9-15

MONTHLY COMPILATIION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (NEGLIGENT SUPERVISION OF STUDENTS)/NEGLIGENCE (ASSUMPTION OF RISK, SCHOOL SPORTS, HORSEPLAY)/NEGLIGENT SUPERVISION (STUDENTS)/ASSUMPTION OF RISK (SCHOOL SPORTS, HORSEPLAY)/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, HORSEPLAY)

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Audit Procedures, Disclosure of Which Could Impede Investigations, Are Exempt from Disclosure

The Third Department noted that documents reflecting audit procedures used by the Department of Education are exempt from a FOIL request if they would facilitate attempts to circumvent the law, even though the documents were not directly related to law enforcement proceedings:

“FOIL is based on a presumption of access to the records, and an agency . . . carries the burden of demonstrating that the exemption applies to the FOIL request” … . The Department here relied upon Public Officers Law § 87 (2) (e) in providing redacted records and, specifically, a provision that exempts records from disclosure that “are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings” (Public Officers Law § 87 [2] [e] [i]). Respondents asserted that the redactions were necessary because disclosure of the unredacted documents would reveal auditing techniques that would enable the providers of preschool special education programs to conceal their financial misdeeds more effectively.

The Department was directed to prepare the audit guidelines in the wake of audits conducted by the Comptroller that “found a pattern of mismanagement, waste and even fraud by numerous private providers of preschool special education” … . Those audits resulted in criminal investigations and the referral of “numerous” certified public accountants to the Department for disciplinary proceedings, and there is no reason to doubt that audits conducted under the guidance of the Department are also aimed at uncovering financial malfeasance. As such, while the guidelines and related documents did not arise from a specific law enforcement investigation, they were nevertheless compiled with law enforcement purposes in mind, and are exempt from disclosure if their release would enable individuals to “frustrate pending or prospective investigations or to use that information to impede a prosecution” … . Matter of Madeiros v New York State Educ. Dept., 2015 NY Slip Op 08028, 3rd Dept 11-5-15

 

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No Special Duty Owed by School District to Adult Employees

The Second Department affirmed the grant of summary judgment to defendant school district in a suit brought by a school bus driver injured by a student. Although the district owes a special duty to students, no such duty is owed to adult employees:

“Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public'” … . While a school district owes a special duty to its students to adequately supervise them to prevent foreseeable injuries to fellow students, that duty does not extend to adults … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not owe the injured plaintiff a special duty … . Guerrieri v New York City Dept./Bd. of Educ., 2015 NY Slip Op 07816, 2nd Dept 10-28-15

 

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School District Failed to Demonstrate It Did Not Have Actual or Constructive Notice of Student’s Potential to Harm Other Students

The Second Department, over a dissent, determined the school district’s motion for summary judgment was properly denied. The district failed to demonstrate it did not have actual or constructive notice of a student’s potential for harming other students:

“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” … . “An injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

* * * [The school district’s] submissions failed to eliminate all triable issues of fact as to whether the School District had actual or constructive notice of the fellow student’s potential for causing harm, and whether, under the circumstances, the School District provided adequate supervision during the field trip … . Lennon v Cornwall Cent. School Dist., 2015 NY Slip Op 07628,, 2nd Dept 10-21-15

 

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No “Special Relationship” Between School District and Teacher Injured by Student

The Second Department determined the absence of a special relationship between the city/school district and a teacher injured by a student required dismissal of the teacher’s action. Although a special relationship exists between a school district and the minor students, a special relationship exists between a school district and a teacher only in limited circumstances:

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured … . Although a school district owes a special duty to its minor students, that duty does not extend to teachers, administrators, or other adults on or off school premises … .

With regard to teachers, administrators, or other adults on or off school premises, a special relationship with a municipal defendant can be formed in three ways: ” (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … .

Here, as the Supreme Court correctly concluded, the school defendants established, prima facie, that they did not owe the plaintiff a special duty… . Brumer v City of New York, 2015 NY Slip Op 07611, 2nd Dept 10-21-15

 

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Negligent Supervision and Retention and Respondeat Superior Causes of Action Against City Department of Education (DOE) Should Not Have Been Dismissed—Complaint Alleged Sexual Abuse of Student By Teacher

The Second Department determined the causes of action against the City of New York Department of Education (DOE) alleging negligent supervision and retention of a teacher, as well as liability based upon respondeat superior, should not have been dismissed. The complaint alleged the sexual abuse of a student by a teacher, Watts, over the course of two years. The DOE failed to demonstrate it did not have actual or constructive notice of the teacher’s propensity for sexual abuse. Although the respondeat superior theory did not apply to the teacher (who acted outside the scope of employment) other employees, who were acting within the scope of employment, may have been negligent:

“Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . “Actual or constructive notice to the school of prior similar conduct generally is required” … . Similarly, in order to establish a cause of action based on negligent retention of an employee, “it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the moving defendants failed to establish, prima facie, that the DOE had no specific knowledge or notice of Watts’ propensity to engage in the misconduct alleged in the complaint … . * * *

The Supreme Court also should have denied that branch of the moving defendants’ motion which was for summary judgment dismissing the cause of action alleging liability based upon a theory of respondeat superior insofar as asserted against the DOE. “Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the DOE may not be held liable under a theory of respondeat superior for the alleged misconduct committed by Watts, as it is undisputed that those acts were not committed in furtherance of the DOE’s business and within the scope of Watts’ employment … . However, as the plaintiffs correctly contend, the complaint adequately alleged that other employees of the DOE were negligent in the performance of their respective duties, and that such negligence constituted a proximate cause of the infant plaintiff’s injuries. In this regard, the moving defendants failed to establish, prima facie, that these other employees were not acting within the scope of their employment …, that they were not negligent, or that any such negligence was not a proximate cause of the alleged injuries … . Nevaeh T. v City of New York, 2015 NY Slip Op 07642, 2nd Dept 10-21-15

 

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