Ernest v. RED CR CENT SCHOOL

• Decision Date: 08 July 1999
• Citation: 717 N.E.2d 690,93 N.Y.2d 664,695 N.Y.S.2d 531
• Parties: KIM ERNEST, Individually and as Parent and Natural Guardian of CHRISTOPHER KNOPP, an Infant, Appellant, v. RED CREEK CENTRAL SCHOOL DISTRICT et al., Respondents, et al., Defendants. (And a Third-Party Action.)
• Court: New York Court of Appeals Court of Appeals

93 N.Y.2d 664

717 N.E.2d 690

695 N.Y.S.2d 531

KIM ERNEST, Individually and as Parent and Natural Guardian of CHRISTOPHER KNOPP, an Infant, Appellant, v. RED CREEK CENTRAL SCHOOL DISTRICT et al., Respondents, et al., Defendants. (And a Third-Party Action.)

Court of Appeals of the State of New York.

Argued June 1, 1999.

Decided July 8, 1999.

Zecher, Capacci, DeValk & Hendricks, P. C., Sodus (Richard L. DeValk of counsel), for appellant.

Bond and McDonald, P. C., Geneva (Mark M. McDonald of counsel), for Red Creek Central School District, respondent.

Osborn, Reed & Burke, L. L. P., Rochester (Jeffrey M. Wilkens and Christian C. Casini of counsel), for County of Wayne, respondent.

Trevett, Lenweaver & Salzer, P. C., Rochester (Peter A. Jacobson of counsel), for Town of Wolcott, respondent.

Chief Judge KAYE and Judges BELLACOSA, SMITH, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

LEVINE, J.

On April 2, 1990, nine-year-old Christopher Knopp was dismissed from his second grade class at Cuyler Elementary School, which is part of Red Creek Central School District. When he attempted to cross Westbury Road, the Wayne County highway in the Town of Wolcott where the school is located, he was hit by a truck and severely injured. We must decide whether plaintiff submitted sufficient evidence to present triable issues on the respective liabilities of the School District, the County and the Town, precluding summary judgment in favor of any of those party defendants.

That evidence, and reasonable inferences therefrom, is as follows. The school is located on the east side of Westbury Road. From the school, Westbury Road runs northward to the Village of Red Creek, where it becomes South Street. At the time of the accident, there was a sidewalk in the Village along the west side of South Street but no sidewalk on Westbury Road. Thus, students who walked home from school to the part of the Village west of Westbury Road had to walk north along the shoulder of the highway or trespass on private property north of the school, and at some point, cross the highway, before arriving at the beginning of the sidewalk. Nowhere on Westbury Road were there traffic signals or a crosswalk to assist the elementary school students in crossing the highway.

In 1985, the School superintendent wrote a letter to the Chairperson of the Wayne County Board of Supervisors and Wolcott Town Supervisor, asking for an extension of the sidewalk from the Village line approximately 250 feet southward to the location directly across the street from the school driveway. In 1989, a second School superintendent wrote to the County Supervisor asking the County to extend the sidewalk to improve safety for students walking to and from school. There were other verbal communications to County officials expressing an imperative safety need for the sidewalk. Neither the County nor the Town took any action in response to these entreaties.

The School District, as a safety precaution, had a long-standing policy of waiting until all of the school buses had departed before allowing walking students to leave the school grounds. On the day of Christopher's accident, however, walking children including Christopher were allowed to start for home before the buses drove away from the school.

As Christopher walked on the worn path through the northern neighbor's lot to the spot almost directly across from where the sidewalk began, two of the buses made a right turn out of the school driveway onto Westbury Road and began heading north toward the Village of Red Creek to begin their route. Christopher and a second child ran across the highway right behind the first bus. Before reaching the sidewalk, where they could walk safely alongside the road, Christopher was hit by a pickup truck traveling south driven by Gordon Carvey. Carvey, who is no longer a defendant in this case, explained that he did not see Christopher because his view was obstructed by the first bus. The location of the accident was approximately 167 feet north of the northern boundary line of the elementary school. Kim Ernest, on behalf of her son Christopher and herself, sued Carvey, the Red Creek School District, the County of Wayne and the Town of Wolcott. Plaintiff claims, among other things, that the School District was negligent in failing to follow its own policy of not releasing walking students until after all of the school buses had departed from the school. She claimed that by failing to install a sidewalk and traffic control devices to remedy the dangerous highway condition on Westbury Road, the Town and County were negligent in their duty to take reasonable precautions for the safety of school children.

Supreme Court granted summary judgment to the School District and the Town but not to the County. The Appellate Division modified, holding that the County was also entitled to summary judgment (251 AD2d 992). We granted leave and now modify again, concluding that the motions for summary judgment of the School District and the County should have been denied. The courts below correctly granted the Town summary judgment.

I.

Plaintiff claims that Red Creek School District was negligent, because instead of following its long-standing policy of releasing walking students after the school buses left, it released Christopher before the buses left the area where those students commonly crossed Westbury Road to proceed to their homes in the Village of Red Creek. As a result, one of the buses obstructed the truck driver's vision of Christopher and his vision of the truck.

In McDonald v Central School Dist. No. 3 (179 Misc 333 [Van Voorhis, J.], affd without opn 264 App Div 943, affd without opn 289 NY 800), we upheld the ruling of Supreme Court which recognized that, although a school district's duty of care toward a student generally ends when it relinquishes custody of the student, the duty continues when the student is released into a potentially hazardous situation, particularly when the hazard is partly of the school district's own making. In McDonald, the Board of Education adopted a rule that children alighting from school buses at stops opposite their homes were required to cross the street in front of the buses. Then Justice Van Voorhis wrote that, because "[t]he presence of the bus necessarily created some hazard" (179 Misc, at 336) by obstructing the views of the child and the drivers of overtaking vehicles, "the jury might well find that the Board assumed a duty to protect [those children] against the special danger which it had created" (id.). Thus, McDonald stands for the proposition that a school district's duty of care requires continued exercise of control and supervision in the event that release of the child poses a foreseeable risk of harm (see also, Bell v Board of Educ., 90 NY2d 944

[school held liable for negligent supervision off school property]).

Pratt v Robinson (39 NY2d 554), relied upon by the courts below, is distinguishable. The plaintiff schoolchild in that case was hit by a truck while she was walking across a street on her way home "several blocks away from the [bus] stop" (id., at 559 [emphasis supplied]). We held that, "the children having been set down in a safe spot, and nothing untoward having occurred in the course of their disembarkation, * * * [the school] bore no further duty to the child" (id., at 560 [emphasis supplied]). Contrastingly here, Christopher was not released to a safe spot but to a foreseeably hazardous setting partly of the School District's making. Thus, while a school has no duty to prevent injury to schoolchildren released in a safe and anticipated manner, the school breaches a duty when it releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating.

Here, a jury could find that the School District breached this legal duty by releasing Christopher to walk home before the school buses were out of the vicinity. The driver who struck Christopher explained that he did not see him because he ran into the southbound lane right behind one of the school buses traveling up Westbury Road. The averment of a long-standing school policy not to release the students who walk home until all of its buses had departed, in recognition of the enhanced risks caused by the presence of the buses, is evidence that the type of accident that occurred in this case was foreseeable. Thus, there are triable issues regarding the School District's liability, precluding summary judgment dismissing plaintiff's claim against that defendant.

II.

Plaintiff also made out a prima facie case of negligence on the part of Wayne County for failing to respond to repeated notice of the need for sidewalks or traffic signs, signals or markings on Westbury Road (see, Vehicle and Traffic Law § 1652-a). In 1985, Superintendent of Schools for the District wrote a letter to the County and Town Supervisor requesting an extension of the Village sidewalk southward, because students "are forced to walk in the road. This condition obviously creates a safety hazzard [sic]." In 1989, a successor superintendent wrote a second letter to that County official again requesting a sidewalk extension from the County, because "a continuation of the Village sidewalk to the school property would result in a greatly improved safety situation for those students electing to walk to and from school."

In Alexander v Eldred (63 NY2d 460), the plaintiff motorcyclist was hit on a City road by a car that did not stop at an intersection where the City had failed to install a stop sign. We held that "[o]ne who is injured in a traffic accident can recover against a municipality if it is shown that its failure to install a traffic control or warning device was...