Busby v. Ticonderoga Cent. School Dist.

• Decision Date: 11 February 1999
• Citation: Busby v. Ticonderoga Cent. School Dist., 684 N.Y.S.2d 709, 258 A.D.2d 762 (N.Y. App. Div. 1999)
• Parties: 132 Ed. Law Rep. 890, 1999 N.Y. Slip Op. 1552 Wayne A. BUSBY, Individually and as Parent and Natural Guardian of Jeremy Busby, an Infant, Respondent, v. TICONDEROGA CENTRAL SCHOOL DISTRICT, Appellant, et al., Defendant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 709

684 N.Y.S.2d 709

132 Ed. Law Rep. 890, 1999 N.Y. Slip Op. 1552

Wayne A. BUSBY, Individually and as Parent and Natural Guardian of Jeremy Busby, an Infant, Respondent, v. TICONDEROGA CENTRAL SCHOOL DISTRICT, Appellant, et al., Defendant (And a Third-Party Action.)

Supreme Court, Appellate Division Third Department.

Feb. 11, 1999.

Fischer, Bessette & Muldowney (James P. Bessette of counsel), Malone, for appellant.

FitzGerald, Morris, Baker & Firth (Veronica Carrozza O'Dell of counsel), Glens Falls, for respondent.

Before: MIKOLL, J.P., CREW III, YESAWICH Jr., SPAIN and CARPINELLO, JJ.

MIKOLL, J.P.

Appeal from an order of the Supreme Court (Dawson, J.), entered April 13, 1998 in Essex County, which, inter alia, denied defendant Ticonderoga Central School District's motion for summary judgment dismissing the complaint against it.

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, 636 N.Y.S.2d 131), 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. ¹ Shortly thereafter, the buses arrived, and as Busby was boarding his bus he felt himself grabbed from behind and turned around. He...