Opinion
February 11, 1999
Appeal from the Supreme Court (Dawson, J.).
On June 24, 1993, 14-year-old Jeremy Busby was "sucker-punched" in the head by a fellow student, third-party defendant Robert Fleury, Jr., while boarding a school bus in front of a high school belonging to defendant Ticonderoga Central School District (hereinafter the District). Busby initially appeared to suffer only mild soreness from the blow, and for several hours after the event engaged in ordinary activities, including swimming at a friend's house. Later in the evening, however, he experienced severe pain and, upon being transported to the hospital, he was found to have sustained serious head trauma requiring emergency neurosurgery, prolonged hospitalization and eventual admission to a center for brain injury rehabilitation.
This appeal relates solely to plaintiff's negligent supervision claim against the District. When the matter was previously before us ( 222 A.D.2d 882), we upheld denial of the District's motion for summary judgment since, at that time, only the deposition of Busby had been taken. Since then, the parties have deposed 11 potential witnesses, including four of the District's teachers, a guidance counselor, three administrators and four students. Thereafter, the District again moved for summary judgment which Supreme Court denied, prompting this appeal.
We note initially that the subsequent deposition testimony has not significantly enhanced plaintiff's proof, which consists primarily of Busby's sworn testimony. The relevant facts are as follows. On June 24, 1993, the eighth-grade class of the District's middle school attended an orientation program at its high school. Accompanying and supervising these 90-100 students (which included Busby and Fleury) were four teachers and a guidance counselor from the middle school. When the orientation program was concluded, the students and teachers waited outside the high school for the arrival of school buses and dismissal. The students were seated in two sets of temporary bleachers that had been erected for high school graduation. The bleachers were located directly in front of the high school's main entrance, adjacent to the road. The four teachers and guidance counselor were in the immediate area, continuing to supervise the students. According to Busby's deposition testimony, while he was seated in the bleachers, Fleury approached him and said "I'm going to fight you", whereupon a male teacher grabbed Fleury and told him to sit down. Shortly thereafter, the buses arrived, and as Busby was boarding his bus he felt himself grabbed from behind and turned around. He was then punched by Fleury. Not included in his deposition testimony was another incident which Busby subsequently described in his affidavit in opposition to the District's summary judgment motion. While in the bleachers, a friend of Fleury's grabbed Busby's baseball cap and spit into it, and passed it around while others, including Fleury, also spit into it. Busby testified that prior to this incident, he had never had any problems with Fleury and in fact the two were friends. It is also uncontroverted that prior to June 24, 1993, neither boy had any serious disciplinary or behavioral problems at school, and both were considered good students.
Curiously, Busby stated that he did not know the name of this teacher, and none of the other deposed witnesses testified to hearing any such statement by Fleury or witnessing any interaction between Fleury and a teacher. For purposes of the summary judgment motion, however, we credit this testimony and all reasonable inferences to be drawn therefrom.
We have consistently noted that "[w]here injuries are caused by the intentional acts of fellow students, imposition of liability upon the school under a theory of negligent supervision is justified when a plaintiff can show, usually by virtue of the school's prior knowledge or notice of the dangerous conduct which caused the injury, that the acts of the fellow student could reasonably have been anticipated" (Schrader v. Board of Educ., 249 A.D.2d 741, 742, lv denied 92 N.Y.2d 806; see, Malik v. Greater Johnstown Enlarged School Dist., 248 A.D.2d 774; see also, Mirand v. City of New York, 84 N.Y.2d 44, 49). The basic premise upon which such liability is imposed is the foreseeability of harm based upon actual or constructive knowledge of a student's dangerous propensity or prior actions. An obvious corollary to this principle is the now familiar rule that, in the absence of any prior knowledge or forewarning, a school will not be held to insure against the consequences of sudden, impulsive, unanticipated acts of other students.
Our difficulty here is precisely with this critical element of foreseeability, as to which we are constrained to find plaintiff's submissions deficient. Assuming, as we must, that Fleury earlier stated to Busby "I'm going to fight you," prompting a teacher to direct Fleury away from Busby, we do not find that this statement, without more, was sufficient to cause the District to anticipate Fleury's eventual act of "sucker punching" Busby or to require it to take any added precautions to protect Busby from Fleury's sudden act, which came as a surprise even to Busby and the other student witnesses. Accordingly, the District's motion for summary judgment should have been granted.
Crew III, Yesawich Jr., Spain and Carpinello, JJ., concur.
Ordered that the order is reversed, on the law, without costs, motion granted, summary judgment awarded to defendant Ticonderoga Central School District and complaint dismissed against it.