Opinion
3585/98.
Decided March 10, 2009.
The plaintiffs are represented by the law office of Kaston, Aberle Levine by Richard M. Aberle, Esq., of counsel, the defendants the City of New York and the New York City Board of Education are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Robert W. Gordon, Esq., of counsel.
Plaintiff E.R., a twelve (12) year old student at P.S. 12 in Brooklyn, at the time of the incident, brings this action, by her mother and guardian, against the New York City Board of Education (the Board) and the City of New York (City) for damages sustained when she was allegedly sexually assaulted during school hours.
The Board moves for summary judgment to dismiss the complaint arguing that the Board did not have notice that the incident would occur and that the school had provided reasonable security. The City moves for summary judgment stating that it is not a proper party to the action. The defendants also move to dismiss the plaintiff's mother's, L. Mateo's derivative claims as these claims were not enumerated in the notice of claim.
In this action, the Court is asked to determine whether knowledge by the Board of a prior act of sexual assault against the infant plaintiff by follow students puts the Board on notice which would require the Board to take steps to insure that additional incidents would not occur. The Board argues that because different boys were involved in the prior accident it was not on notice that an incident would occur. Plaintiff argues that the prior incident constitutes notice and that triable issues of fact exist.
This case involves three incidents of sexual misconduct committed against E.R.
The first incident occurred on October 3, 1996 while E.R. was running up the stairs after lunch when two (2) boys grabbed her, pulled her down and fondled her . The October 3, 1996 incident was not memorialized in detail by the school administration in writing until January 3, 1997 (after all the incidents). However, the school did send a notice out to parents dated
October 7, 1996 which described the October 3, 1996 incident as follows:
A 6th grade girl was returning from lunch without her class after playing ball with a group of students. Three 6th grade boys that she was playing with outside pulled on her in the stairwell. One inappropriately touched her across her chest. Parents were contacted immediately and a full investigation of incident was done. The young lady received counseling by administration and District Office guidance staff. A hearing is pending for the male student. Appropriate measures are being taken to assure this does not reoccur.
On November 8, 1996, E.R., after playing a ball game called "suicide" with a group of boys at lunch time, was on her way to her seventh period class when, as she testified, she got "caught up" with a group of boys after which a series of events happened that led to the plaintiff being raped and having sexual intercourse. Seven (7) to ten (10) boy students were involved in the incidents which occurred in two separate bathrooms. While the assault was taking place, other boys were watching from inside and outside the bathroom doors, some while standing in the school hallway. The incident ended when someone shouted that "someone was coming". During this period of time, the plaintiff was missing from her seventh period class.
With respect to the level of teacher supervision on November 8, 1996, plaintiff testified as follows:
Q. When you finished playing the game, then what did you do?
A. We were supposed to line up with out [sic] class so our teachers could pick us up.
Q. Did you line up?
A. That day nobody lined up.
Q. Do you know why?
A. No, but the teachers, what they did, they had came into the yard, and they showed their faces, and they continued walking.
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Q. She showed her face and then what did she do after that? Did she walk away?
A. She took her class and left.
Q. Did your seventh period teacher come out and take his class that day?
A. No.
Q. So what did you do when your teacher did not come out?
A. Like I said, when lunch was over, they gave us five minutes to go and get back in the school. A few grades did line up because their teacher was there, but my class did not line up and they went upstairs.
E.R. further testified that when in the bathroom she felt that she was pulled on by the boys which made it hard for her to leave, that she "blacked out" at the point of intercourse and that she "heard what was going on but my mind went somewhere else". She testified that after the first part of the assault in the girls bathroom that she attempted to leave but there was a "whole bunch" of boys outside the girls bathroom and that she felt threatened because there was no where to walk. The boys surrounded her until she entered the boys bathroom which was a foot away from the girls bathroom. The boys involved gave brief statements admitting some type of sexual contact and stating that the plaintiff allowed the boys to touch her.
After the incident, the plaintiff went into the auditorium for an assembly where everyone was gathered for the eighth period. At the end of the assembly, she was approached by her seventh grade teacher, who told her to visit the principal. At the initial meeting with the principal, the plaintiff only described that she let the boys touch her breasts but did not describe the full nature of the sexual acts.
A month later, in December 1996, another assault of a sexual nature involving plaintiff took place. This incident led to an investigation by the school and the police department and ultimately the discovery of the extent and the nature of the sexual assault that took place on November 8, 1996.
Testimony form the principal of the school indicated that the boys involved in the October incident were not the same as the boys involved in the November incident; that the school had approximately 700 to 800 students; that during class hours there would be a district guard and a school safety officer who were responsible for the school's common areas including the bathrooms. However, there was no specific procedure to check the bathrooms. During class hours, the district guard and monitor were supposed to walk and monitor the hallways. The principal was unclear about how many security guards or hall monitors were working on November 8, 1996. The year in which the incident occurred was one of the first years when the elementary school included an additional upper grade, starting with the sixth grade. The sixth grade, which was plaintiff's grade, was one of the only grades to rotate to different classes and teachers through out the day. The principal did not remember whether attendance was taken in the individual classes or what the exact procedure was to change classes, or whether there was a bell system in place at the time. The principal also testified that she did not remember if any
changes were made to the security procedures after the October incident and the October 7, 2009 memo.
To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor ( Alverez v Prospect Hospital., 68 NY2d 320, GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 967). Issue finding rather than issue determination is its function ( Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395). The evidence will be construed in the light most favorable to the one moved against ( Weiss v. Garfield, 21 AD2d 156 [3rd Dept 1964]).
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". ( Mirand v City of New York, 84 NY2d 44, 49). In general, it is a school's duty to supervise a student with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances. ( Mirand v City of New York, 84 NY2d 44, 49, Lawes v Board of Educ. of City of NY, 16 NY2d 302, Ohman v Board of Education, 300 NY 306.) Plaintiff must show that the school authorities had sufficiently specific knowledge or notice of the type of dangerous conduct which caused the injury, such that the school could reasonably have anticipated the behavior in order to establish a breach of the duty of care. ( Mirand v City of New York, 84 NY2d 44.) Injury caused by an unanticipated or impulsive act of a fellow student 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 act that caused the injury. ( Mirand v City of New York, 84 NY2d 44, Janukajtis v Fallon 284 AD2d 428 [2d Dept 2001].)
The Board submits that it is entitled to summary judgment because schools are not insurers of safety and can not reasonably be expected to continuously supervise and control all movements and activities of students. The Board also argues that it is not liable for every thoughtless or careless act by which one student may injure another. The Board asserts that it did not have notice that the November incident would occur, as the boys involved in that incident had no prior history of sexual assault and therefore the Board did not have specific knowledge that the incident might occur. The Board relies on a sexual assault case, Schrader v Board of Education, 249 AD2d 741 [3d Dept 1998], where a female eighth grade student met two of her male friends in a hallway in the school, and the two boys asked her to follow them to the gym, where they sexually assaulted her. The court in Schrader granted summary judgment to the defendants stating that the school had no notice of the risk of sexually assaultive behavior on the part of the two boys as to make their assault reasonably foreseeable.
The Board also asserts that the school had reasonable security as measured by the reasonable care that an ordinary prudent parent would exercise as the school had two (2) to four (4) security guards, three (3) to eight (8) school aides and teachers to monitor the halls and that the plaintiff was immediately approached after the incident and sent to the Principal's office, which demonstrates that the school was monitoring the plaintiff. The Board further argues that there was no evidence that the November incident was foreseeable.
In opposition, the plaintiff maintains that the Board had notice of the prior October incident which occurred before the bathroom assault, and was memorialized by the school in the letter sent to parents on October 7, 1996. Plaintiff asserts that the Board was on notice because the November incident occurred in the same manner as the October incident, i.e. the sexual assault of plaintiff occurred on her way back from lunch to class and the school failed to adequately take "appropriate measures" to prevent the second incident as promised by the school in the October 7, 2006 memo to parents.
The plaintiff cites Bell v Board of Education, 90 NY2d 944, where a sixth grade school student became separated from her class during a class trip to a park. When the student could not find her class, she started to walk home when she was met by two boys, one of whom she knew, after which she was physically threatened and raped. The Court of Appeals in Bell reversed the Appellate Division, First Department's overturning of a jury verdict for plaintiff. The Court held as follows:
On this record, we cannot say that the intervening act of rape was unforeseeable as a matter of law. A rational jury hearing the trial testimony could have determined, as the jury in this case did, that the foreseeable result of the danger created by defendant's alleged lack of supervision was injury such as occurred here. A fact finder could have reasonably concluded that the very purpose of the school supervision was to shield vulnerable school children from such acts of violence. As we have previously recognized, "[w]hen the intervening intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs" ( Kush v City of Buffalo, 59 NY2d 33, supra).
After a review of the record, the Court finds that triable issues of fact exist as to whether the Board had specific knowledge of the need to provide closer supervision of the plaintiff because the school had knowledge that the plaintiff had been previously targeted and involved in an incident of a sexual nature. The Board's reliance on Schrader v Board of Education, 249 AD2d 741 [3d Dept 1998] is misplaced. In Schrader, the intervening acts of the students could not have been foreseen as plaintiff student had not been previously a target of sexual assault nor had there been any previous incidents with the aggressors. The Court also finds that the Board's argument that the school did not have specific knowledge as to the propensity of the particular boys who were involved in the November assault unpersuasive. In Doe v Department of Educ. of the City of New York , 54 AD3d 352 [2d Dept 2008], which was a sexual assault that took place in a school setting, the Court found that certain evidence such as ". . . records of prior assaults by students at the school, including a rape in a stairwell, was probative "as to the issue of whether the assault in that case was foreseeable. The Court in Doe did not singularly focus on the propensity of the actors. Further, the court in S.K. Infant v City of New York , 19 Misc 3d 493,(Sup.Ct. Kings County, 2008), found that since plaintiff was previously targeted for assault there were triable issues of fact as to whether the school was on notice that the plaintiff needed to be provided with closer supervision.
The Court also finds that there are issues of fact as to whether the type and manner of security that was in place at the time of incident was sufficient. A careful review of the transcript of the deposition of the principal indicates numerous inconsistencies and lack of clarity as to specific details concerning the duties and responsibilities of the security officials including how the school supervised the students during the class breaks. As a result, there are questions of fact as to whether a reasonable prudent parent with children of the age of the sixth graders would allow them to be in the hallways, bathrooms or missing from class without having a mechanism for checking and supervising the children more closely.
With respect to the City's motion for summary judgment, the City maintains that, pursuant to Education Law § 2554 (4) and Chapter 20, § 521 (a) and (b) of the New York City Charter that it does not retain management, control or maintenance of the property. Therefore, it is entitled to have the complaint against it dismissed. The plaintiff does not address this issue in her opposition. The Court finds that the City cannot be held liable for torts allegedly committed by the Board and its employees as the Board and the City are separate entities. ( Santiago v Board of Education, 41 AD616 [1st Dept 1973].) The Court denies the Board's motion for summary judgment as there are triable issues of fact as to whether the Board was on notice so as to create a duty to the plaintiff and whether the Board provided reasonable supervision for the students. The Court grants the City's motion to dismiss the complaint as the City is not a proper party to the action. The Court also grants the defendant's motion to dismiss the plaintiff's mother's derivative claims as these claims are not enumerated in the plaintiff's notice of claim. ( Maidman v Stass, 82 AD2d 299 [2d Dept 1981]).
The foregoing constitutes the decision and order of the Court.