Christofides v. Hellenic Eastern Orthodox Christian Church of New York

• Decision Date: 09 May 1962
• Citation: 227 N.Y.S.2d 946,33 Misc.2d 741
• Parties: Alexander CHRISTOFIDES, an infant under the age of fourteen years, by his guardian ad litem Sergios Christofides, and Sergios Christofides, Plaintiffs, v. HELLENIC EASTERN ORTHODOX CHRISTIAN CHURCH OF NEW YORK, Defendant.
• Court: New York City Municipal Court

Page 946

227 N.Y.S.2d 946

33 Misc.2d 741

Alexander CHRISTOFIDES, an infant under the age of fourteen years, by his guardian ad litem Sergios Christofides, and Sergios Christofides, Plaintiffs, v. HELLENIC EASTERN ORTHODOX CHRISTIAN CHURCH OF NEW YORK, Defendant.

Municipal Court of City of New York, Borough of Manhattan Ninth District.

May 9, 1962.

Schifrin & Schnapper, New York City, Harvey Felton, Mount Vernon, of counsel, for plaintiffs.

Lynch, Smith & Kelly, New York City, James F. X. Ryan, New York City, of counsel, for defendant.

GEORGE STARKE, Justice.

In this action recovery is sought for personal injuries inflicted upon the infant plaintiff by another classmate due to negligence of the school in failing to provide supervision in the classroom.

The pupils were required to report to their classrooms at 8:30 A. M. On the morning of April 22, 1958, the plaintiff and almost every other pupil in the class reported on time. There was no teacher present to supervise them. When the bell rang at 8:45 A. M. for the commencement of the class lessons, the teacher was still absent. About ten minutes later, the incident occurred wherein plaintiff was stabbed in the hand by another boy. There still was no teacher present in the classroom. From 8:30 A. M. to 8:55 A. M. most of the boys indulged in horseplay and fighting with one another, and in running and chasing each other around the room. The boy who did the stabbing was seen wielding a knife for about five or ten minutes prior to the actual stabbing.

There were a total lack of supervision in the classroom for a period of 25 minutes prior to the stabbing for which there was no provocation. Some slight evidence, not much, but some at least, was presented that the boy who did the stabbing was an unruly and mischievous boy and had been reprimanded previously by the teacher for misconduct. There was no proof whatever of a prior similar act.

Both sides rely on Ohman v. City of New York, 300 N.Y. 306, 90 N.E.2d 474 (citing Maurer v. Board of Education of the City of New York, 294 N.Y. 672, 60 N.E.2d 759; Clark v. City of Buffalo, 288 N.Y . 62, 41 N.E.2d 459; Berner v. Board of Education, 286 N.Y. 174, 36 N.E.2d 100; Graff v. Board of Education, 258 App.Div. 813, 15 N.Y.S.2d 941, affd. 283 N.Y. 574, 27 N.E.2d 438). The defendant also relies on the Clark case, supra, and on Kaufman v. City of New York, 30 Misc.2d 285, 214 N.Y.S.2d 767.

The defendant contends that mere lack of supervision in and of itself does not make the school liable when the act causing the injuries is that of an intervening party without any proof of a 'prior similar act' or of knowledge of the boy's 'vicious propensities'; that even assuming, but not conceding, that the teacher was negligent in being absent from the classroom, it does not follow that the school is liable for the consequences of an unforeseen act by a third party which hardly could have been anticipated in the reasonable exercise of the teacher's legal duty towards the plaintiff; that the absence of the teacher was not the proximate cause of the injury which was not reasonably foreseeable and could have occurred even if the teacher had been in the room; and that whether or not the duty of supervision was breached is not the controlling issue, but that the issue is 'would the incident and injury have been prevented had a teacher been present?'

It is true that in all of these cases, there was no supervision and that the plaintiff was not permitted to recover. However, the facts in those cases are readily distinguishable from the case at bar. In the Ohman case, supra, a pupil was struck in the eye by a lead pencil thrown by a classmate while the teacher was absent from the room. In the Maurer case, supra, the plaintiff was injured by having a finger stuck into his eye by another boy swimming in the same pool in the opposite direction, contrary to instructions, and no instructor was present. In the Clark case, supra, the plaintiff was struck in the eye by a piece of glass thrown by a boy, when there was no supervision. In the Kaufman case, supra, a boy sustained head injuries and died as a result of bumping heads with another boy in a basketball game in a college gymnasium and no instructor had been present in the room. In the Berner case, supra, the pupil's eye was injured as she turned the corridor on her way to the classroom when one boy threw the ball to another boy, and there was no supervision of the children at the time of the occurrence. In the Graff case, supra, the pupil was injured by a ball thrown by one of the pupils while all the students were lawfully in the school yard during the lunch period but without any supervision.

It is easy to differentiate the facts in the case at bar by reason of the fact that the plaintiff was injured by a knife with a three-inch blade held in the hands of another pupil, and not by the tossing of an ordinary lead pencil (Ohman case, supra), a finger poked in a pupil's eye while swimming (Maurer case), a thrown rubber shall (Berner and Graff cases), or the bumping of heads in a basketball game (Kaufman case). The defendant overlooks the fact that in the Ohman case (supra, p. 310, 90 N.E.2d p. 475) the court said:

'* * * nor can anyone seriously contend that a pencil in the hands of a school pupil is a dangerous instrumentality.'

And in the Graff case (supra, p. 813, 15 N.Y.S.2d p. 942) the court said:

'No negligence on the part of an instructor had been shown. In the light of the fact that the object which struck the infant plaintiff was a rubber ball, which was not shown to have been of an inherently dangerous nature.'

Quite the contrary here. Common sense dictates and one can seriously contend that a knife with a three-inch blade in the hands of a school pupil is per se a 'dangerous instrumentality.'

This leaves the Clark case, supra, open for discussion which the defendant urges is very similar to the case at bar. One may with reason argue that stones and small pieces of glass might under certain conditions be deemed a dangerous instrumentality, particularly when hurled. There the plaintiff was injured while there was no supervision when a classmate who had been wading in a pool with the plaintiff picked up several stones and small pieces of glass and threw them in the plaintiff's direction, striking her in the eye with a piece of glass.

This brings up another important and distinguishing feature completely ignored by the defendant, namely--the time element. Was the third-party act a sudden impulsive, momentary or instantaneous one? Or, was the time factor such that sufficient time elapsed immediately prior to the incident which could have enabled a teacher, if he were present, to take some action to prevent the occurrence?

For in the Clark case (supra, p. 66, 41 N.E.2d p. 461) the court said:

'Harm came to the plaintiff only after danger was created by the intervention of a third person, a mischievous boy, who on the impulse of the moment--and which no prior conduct on his part or by the plaintiff gave warning--picked up stones and glass and threw them towards the plaintiff and her companions.' (Italics supplied.)

The court further stated (p. 66, 41 N.E.2d p. 461):

'There is no evidence that prior to the accident the plaintiff, her two companions and the boy who threw the glass were quarrelsome; nor is there any proof that anything had occurred in their play either in the wading pool or elsewhere from which the most vigilant life guard or attendant could have anticipated the unprovoked conduct of the boy whose sudden and impulsive act brought injury to the plaintiff.' (Italics ours.)

In the Ohman case (supra, p. 309, 90 N.E.2d p. 475) we have the sudden throwing of the pencil, an act which 'could hardly have been anticipated in the reasonable exercise of the teacher's legal duty toward the plaintiff.' The pencil had been tossed by a classmate in the direction of a third classmate with the remark 'Here is your pencil' (p. 308, 90 N.E.2d p. 474). The boy for whom it was intended ducked and the pencil hit the plaintiff who was standing directly behind him.

In the Kaufman case (supra, p. 286, 214 N.Y.S.2d p. 769) the court held that the bumping of heads in a basketball game was a hazard and that the absence of instructors did not make the school liable on the theory of failure to supervise, saying:

'If the instructor were present and watching and supervising the game, he could not have stopped the boys from bumping their heads together.'

In Wilber v. City of Binghamton, 271 App.Div. 402, 66 N.Y.S.2d 250, affd. 296 N.Y. 950, 73 N.E.2d 263, a child was struck in the eye by a stone batted by another pupil during recess in the school playground, and there was a claim of lack of adequate supervision. In dismissing the complaint, the court stressed the 'time element'--the warning period, saying (p. 405, 66 N.Y.S.2d p. 253):

'In order to sustain any recovery, it must be based upon the additional finding that such failure [to provide adequate protection] was the proximate cause of the accident. * * * There were no dangerous or defective conditions. There is no evidence of the length of time Sagar had been batting stones or that the accident would not have happened if there had been another teacher in attendance.' (Italics supplied.)

In Ferraro v. Board of Education of the City of New York, 32 Misc .2d 563, 212 N.Y.S.2d 615, affd. 14 A.D.2d 815, 221 N.Y.S.2d 279, Justice Di Giovanna made a comprehensive and exhaustive review of numerous school cases in writing the decision on behalf of the Appellate Term, 2nd Dept., dealing with whether a school principal was negligent in failing to alert a substitute teacher, who had charge of the class, concerning known misconduct of a student who had assaulted a fellow pupil in the classroom. I should like to quote from pages 627 and 628 of the Supplement citation, wherein he refers to the time element and the question of 'spontanei...