Berner v. Bd. of Educ. Union Free Sch. Dist. No. 1, North Tonawanda
| Decision Date | 29 July 1941 |
| Citation | 286 N.Y. 174,36 N.E.2d 100 |
| Parties | BERNER v. BOARD OF EDUCATION, UNION FREE SCHOOL DIST. NO. 1, NORTH TONAWANDA (two cases). |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Actions by Ellen M. Berner, an infant, by Theophilus H. Berner, her guardian ad litem, and by Theophilus H. Berner, against the Board of Education, Union Free School District No. 1, North Tonawanda, New York, for injuries sustained by the infant. From judgments entered in the office of the clerk of the Niagara county, January 28, 1941, upon orders of the Appellate Division, 261 App.Div. 885, 26 N.Y.S.2d 855, affirming, by a divided vote, judgments of the Supreme Court, Niagara County, awarding money judgments to the plaintiffs, defendant appeals.
Judgments reversed and complaint ordered dismissed.
RIPPEY and DESMOND, JJ., dissenting. Alpheus R. Phelps, of Niagara Falls, for appellant.
Heffren J. Cohen, of North Tonawanda, for respondents.
The Legislature has given to boards of education of union free school districts, including the defendant-appellant in the present case, ‘the superintendence, management and control of * * * union free schools,’ within their respective districts and has imposed upon such boards the duty ‘To establish such rules and regulations concerning the order and discipline of the schools, in the several departments thereof, as they may deem necessary to secure the best educational results.’ Education Law (Consol.Laws, ch. 16), s 310, subds. 2 and 12; cf. id., s 275, subd. 9.
In the present case we are to determine whether there is any substantial evidence to establish that the proximate cause of personal injuries sustained by the infant plaintiff was a failure by the defendant to perform the statutory duties thus imposed.
The infant plaintiff was a member of the senior class of North Tonawanda High School, a school in which were registered 1,200 pupils of whom 800 attended the morning session which commenced at eight o'clock. The school was under the supervision of the defendant Board of Education. Its staff of teachers numbered forty, including the principal. The school building was opened on the morning of each school day at seven o'clock, after which hour pupils were permitted within the building to go to their lockers and to the study hall, or to remain in the corridors. They were not permitted to enter their class rooms until eight o'clock. The principal of the school, whose office was on the second floor, arrived at seven-thirty A. M.; the teachers were required to be present at seven-forty-five A. M.
On the morning of the accident the infant plaintiff, having arrived from Martinsville in the school bus at about seven-thirty, entered the school building and went directly to the second floor. As she turned a corner in the second floor corridor she was struck in the left eye by a tennis ball and thus sustained the injury for which she has been awarded damages against the defendant Board of Education. The pupil, Winters, who threw the ball, had arrived at the school about seven-twenty-five A. M. and had brought with him two old tennis balls to give to a friend. There were not more than five pupils in the upper corridor when he and a companion, Klein, commenced to roll one of the tennis balls back and forth on the floor. They had played in this fashion for about five minutes when another pupil intercepted the ball and threw it to Winters. The accident occurred when Winters in turn attempted to throw the ball to Klein.
There is proof that prior to the accident there had been occasional instances of youthful antics by students, which had taken place in the second floor corridor near the door of the principal's office. It appears, however, without contradiction, that no casualty had...
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