Dia Cc. v. Ithaca City School District

• Decision Date: 10 April 2003
• Citation: 304 A.D.2d 955,758 N.Y.S.2d 197
• Court: New York Supreme Court — Appellate Division
• Parties: DIA CC., as Parent and Guardian of ADAM CC., an Infant, Appellant,<BR>v.<BR>ITHACA CITY SCHOOL DISTRICT et al., Respondents, et al., Defendant.

304 A.D.2d 955

758 N.Y.S.2d 197

DIA CC., as Parent and Guardian of ADAM CC., an Infant, Appellant,

v.ITHACA CITY SCHOOL DISTRICT et al., Respondents, et al., Defendant.

Kane, J.

Decided April 10, 2003.

Mercure, J.P., Crew III, Peters and Rose, JJ., concur.

Kane, J.

In January 2000, plaintiff and her family moved from another country to the City of Ithaca, Tompkins County. During the school enrollment process for plaintiff's six-year-old son, Adam, he was evaluated by an English as a Second Language (hereinafter ESL) teacher employed by defendant Ithaca City School District (hereinafter the District) at defendant Belle Sherman School (hereinafter collectively referred to as defendants). On February 28, 2000, after informing Adam's classroom teacher, the ESL teacher took Adam to the ESL classroom for follow-up testing. Plaintiff alleges that the ESL teacher sexually molested Adam at that time and on other occasions. Medical examinations provided no conclusive evidence of sexual abuse. Police investigated, but no criminal charges were filed. Defendants also investigated the situation, culminating in a decision by the District's school board not to prefer disciplinary charges. Plaintiff filed suit on Adam's behalf and, after extensive discovery, several motions were filed. Supreme Court determined, inter alia, to grant defendants' motion for summary judgment dismissing the complaint against them. Plaintiff now appeals.

Despite arguments in the briefs regarding a claim of negligent hiring by the District, neither the complaint nor the bill of particulars alleges such a cause of action. Accordingly, plaintiff may not proceed on that theory.

"Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002] [citations omitted]). An act of sexual assault by an employee is a clear departure from the scope of employment, committed solely for personal reasons, and unrelated to the furtherance of the employer's business (see id. at 251; McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686, 687 [2002], lv denied 99 NY2d 503 [2002]; Mary KK. v Jack LL., 203 AD2d 840, 841 [1994]). Therefore, the District may not be held vicariously liable for a sexual assault committed by its employee.

Even so, a school has a duty to adequately supervise students in its care, and may be held liable for injuries that are foreseeable and proximately related to the school's failure to provide adequate supervision (see Druba v East Greenbush Cent. School Dist., 289 AD2d 767 [2001]). The standard to determine whether the school has breached its duty is to compare the school's supervision and protection to that of "a parent of ordinary prudence placed in the identical situation and armed with the same information" (Mary KK. v Jack LL., supra at 841; see ...