Begley v. City of N.Y.

• Decision Date: 18 September 2013
• Citation: 2013 N.Y. Slip Op. 05867,111 A.D.3d 5,972 N.Y.S.2d 48
• Parties: Karen BEGLEY, etc., et al., respondents-appellants, v. CITY OF NEW YORK, defendant, New York City Department of Education, respondent, The Forum School, et al., appellants.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 5

972 N.Y.S.2d 48

2013 N.Y. Slip Op. 05867

Karen BEGLEY, etc., et al., respondents-appellants,

v.CITY OF NEW YORK, defendant, New York City Department of Education, respondent, The Forum School, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 18, 2013.

Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler of counsel), for appellant The Forum School.

Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (James P. Connors and William Schleifer of counsel), for appellant Michelle Timothy.

Guercio & Guercio, LLP, Farmingdale, N.Y. (Gregory J. Guercio of counsel), for respondents-appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for respondent.

RANDALL T. ENG, P.J., RUTH C. BALKIN, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.

ENG, P.J.

Jonathan Begley, a nine-year-old autistic boy who suffered from asthma as well as allergies to a wide range of foods and substances, was enrolled in the summer of 2004 as a student in The Forum School located in Waldwick, New Jersey. His placement in this private educational facility for special needs children came as the result of an Individualized Education Program prepared by his local Staten Island school district, which directed that, in light of his history of severe asthma and allergies, he be provided with such exceptional services as a registered nurse to accompany him while he traveled to and from school and monitor him throughout the school day. Jonathan's mother interviewed and selected several nurses to share the duties of caring for the child on school days, and the New York City Department of Education (hereinafter the DOE) paid for the nurses' services. Jonathan had just finished lunch at school on the afternoon of July 21, 2004, when he began to experience difficulty in breathing. Believing that Jonathan was having an asthma attack, the nurse who accompanied him to school that day administered Proventil to the child through his nebulizer. However, when Jonathan's condition did not improve, his nurse realized that he was having a severe allergic reaction, and administered epinephrine by injecting him with an “epi-pen.” School personnel called 911, and the school nurse assisted Jonathan's nurse as she attempted to alleviate his respiratory distress by injecting him with two more epi-pens. When an ambulance arrived, paramedics transported Jonathan to a nearby hospital, where he died two days later. Although the allergen which triggered Jonathan's reaction has never been conclusively determined, his parents, the plaintiffs Karen Begley and Brian Begley, suspect that it may have been caused by Jonathan's exposure to blueberries during a classroom lesson that morning.

Following the death of their son, the plaintiffs commenced this action against, among others, the DOE, The Forum School, and Jonathan's nurse, Michelle Timothy, alleging that they negligently allowed Jonathan to be exposed to a substance to which he was allergic, and failed to properly respond when he began exhibiting symptoms of an anaphylactic (that is, a severe allergic) reaction. After extensive discovery, the DOE, The Forum School, and Timothy separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. The Supreme Court (Aliotta, J.) granted the DOE's motion in its entirety, concluding that it could not be held liable on a negligent supervision theory because Jonathan was not in its physical custody at the time of his injury, and that it could not be held vicariously liable for Timothy's alleged negligence because she was an independent service provider. However, the Supreme Court denied the respective motions of The Forum School and Timothy for summary judgment dismissing the complaint and all cross claims insofar as asserted against them except to the extent of dismissing the cause of action to recover punitive damages. For the reasons that follow, we conclude that the Supreme Court properly granted the DOE's motion, and we take this opportunity to clarify the extent of the DOE's duty to supervise a child who is not in its physical custody. We also conclude that the motions of The Forum School and Timothy should have been granted in their entirety.

I

Jonathan Begley, the child whose tragic death is at the center of this litigation, was born on January 10, 1995, the second of the plaintiffs' two children. Jonathan first exhibited symptoms of asthma at the age of 10 months, when he started to wheeze. The family pediatrician prescribed Proventil, administered through a nebulizer, for use during asthma attacks. When Jonathan was about a year old, a pediatric immunologist began testing him for various allergies. The first round of testing determined that Jonathan was allergic to milk, eggs, wheat, soy, and gluten. As Jonathan grew older, he also developed food allergies to tree nuts and rye. He was further determined to be allergic to a number of other substances, including dust mites, animal dander, flowers, cigarette smoke, perfume, and certain soaps and hand creams. In addition to his health problems, when Jonathan was about two years old, he was diagnosed as autistic.

In the summer of 2001, when Jonathan was six, his local School District's Committee on Special Education acknowledged, during the course of a hearing, that it was unable to provide him with an educational program that would meet both his educational and medical needs. The plaintiff parents located a placement for Jonathan at The Forum School in Waldwick, New Jersey, and the District concurred that The Forum School, which specializes in the education of disabled students, would be an appropriate setting for Jonathan. In accordance with the hearing officer's directive, on July 24, 2001, the Committee on Special Education prepared an Individualized Education Program (hereinafter IEP), which called for Jonathan to attend The Forum School, and have a registered nurse to accompany him while he traveled to and from school on a bus dedicated to his sole use, as well as to monitor his condition throughout the school day. The 2001 IEP noted that Jonathan was allergic to all dairy, wheat, gluten, eggs, bread, crackers, and yogurt, and that due to his extreme allergies, “an epi-pen must be present at all times.” An updated IEP prepared in 2004 stated that Jonathan was severely allergic to “wheat, gluten, eggs, all dairy, perfume,” that he required “nursing services to administer a nebulizer for asthma two to three times a week,” and should have two epi-pens “present at all times.”

Jonathan entered The Forum School in September 2001. The DOE paid his tuition at the school, and also paid for the cost of transportation and nursing care. The nurses who shared the duty of accompanying Jonathan to school and monitoring his medical condition throughout the school day were interviewed and chosen by his mother, the plaintiff Karen Begley. The plaintiff mother packed lunch and snacks for Jonathan to take to school each day, and also prepared a medical bag for Jonathan that contained a portable nebulizer and all of his medications, including Proventil, Benadryl, and four epi-pens. To alert the school staff and Jonathan's nurses to potential allergens, the plaintiff mother prepared laminated cards which indicated that Jonathan had severe allergies to dairy products, eggs, and foods containing these ingredients, and that ingesting or touching these foods would cause an anaphylactic reaction. In addition, she provided the nurses and the school with a letter from Jonathan's physician advising that he had severe asthma and life threatening food allergies, and setting forth a “partial list” of his allergies. The physician's letter noted that “all dairy products,” eggs, and tree nuts would cause anaphylaxis, which should be treated by injecting with an epi-pen, to be repeated in 15 minutes, and, if conscious, the administration of liquid Benadryl. The letter further directed “[g]ive Proventil via nebulizer for wheezing.”

Despite Jonathan's severe asthma and allergies, during the nearly three-year period that he attended The Forum School, he was able to experience some of the normal joys of childhood by participating in activities which included swimming in the school pool with other children, playing basketball, and going on the swings during recess. From the time he entered The Forum School in September 2001 through the end of the spring semester in 2004, Jonathan's private nurses sat inside the classroom next to him. However, in the spring of 2004, Jonathan's teacher expressed concern that one of the nurses was “hovering over” Jonathan, impeding his development of independence. As a result, at the beginning of the summer 2004 semester, a new policy was implemented requiring the nurses to sit in the hallway outside Jonathan's classroom. From this vantage point, the nurses were still able to see Jonathan, who was about five feet away. The defendant nurse, Michelle Timothy, recalls that at the time this seating policy was implemented, the teacher assigned to Jonathan's class for the 2004 summer session assured her that she could enter the classroom if she needed closer access to Jonathan, and that she usually did so about once a day.

Jonathan suffered the severe reaction that ultimately resulted in his death on July 21, 2004. That morning, his teacher, Ann Schwartzstein, noticed that Jonathan was a little red in the face and a little agitated, but he “returned to normal very quickly,” and went to gym class with his classmates. After the children returned from gym, Schwartzstein conducted a “multi-sensory” lesson on the State of Maine, reading the children a book called “Blueberries for Sal,” and displaying a basket of blueberries to make the story come alive for them. Both Schwartzstein and Timothy, the nurse who accompanied Jonathan to school...