Ferraro v. Board of Ed. of City of New York

• Decision Date: 03 February 1961
• Citation: 32 Misc.2d 563,212 N.Y.S.2d 615
• Parties: Josette FERRARO, an infant under the age of fourteen years by her Guardian ad Litem Joseph Ferraro, and Joseph Ferraro individually, Plaintiffs, Josette Ferrar, an infant, etc., Respondent, v. BOARD OF EDUCATION OF CITY OF NEW YORK and the City of New York, Defendants; Board of Education of City of New York, Appellant.
• Court: New York Supreme Court — Appellate Term

Page 615

212 N.Y.S.2d 615

32 Misc.2d 563

Josette FERRARO, an infant under the age of fourteen years by her Guardian ad Litem Joseph Ferraro, and Joseph Ferraro individually, Plaintiffs Josette Ferrar, an infant etc., Respondent, v. BOARD OF EDUCATION OF CITY OF NEW YORK and the City of New York, Defendants; Board of Education of City of New York, Appellant.

Supreme Court, Appellate Term, Second Department.

Feb. 3, 1961.

Charles H. Tenney, Corporation Counsel, and John A. Murray, New York City, for appellant.

William G. Werner and Herbert L. Fine, New York City, Starkmen & Fine, New York City, of counsel, for respondent.

Before HART, DI GIOVANNA and BROWN, JJ.

DI GIOVANNA, Justice.

This is an appeal from a judgment in favor of the plaintiff in the sum of $1,674.

The action was brought to recover damages for personal injuries sustained by the infant plaintiff as a result of an assault committed upon her person by another student assigned to the same class as plaintiff in Junior High School.

It is claimed that the defendant, through its principal and teachers, had knowledge of the vicious propensities of this other student to do harm to others and that they failed in their duty to protect the plaintiff from her.

According to the principal of this Junior High School this other student had been transferred to his school on January 6, 1955 from another Junior High School. The transfer had been made upon the recommendation of the principal of the other school and the Assistant Superintendent of the defendant in charge of that school because of a record of misbehavior. This principal had been informed of her prior record by the guidance record of the child forwarded at the time of transfer.

According to the guidance record, she had been a source of constant quarreling and aggressive behavior towards other students as well as teachers. The assault in this case took place on March 11, 1955. During the intervening period the principal became fully aware of constant misconduct on the part of this other student. He said:

'She disobeyed even the simplest orders and she felt--or she expressed resentment of the treatment by other children and by teachers as well.'

Further:

'The child was a source of trouble from almost the first day that she arrived in the school.'

From the date of her enrollment to the date of the occurrence he had knowledge of at least three occasions when she assaulted other pupils. On other occasions her misconduct took other forms. His concern was such that he formed the opinion that:

'* * * this child was a very seriously disturbed child. I use the word 'seriously' with full awareness of what it means. The youngster has an average I.Q. and average ability, but day after day there were indications that the stability of temper was just not there.

'You asked me whether I had spoken to her many times and if this was unusual. Certainly, it was, because I was concerned to try to make a good adjustment. Many of the times I spoke to her she had done nothing wrong and I seized these opportunities to praise her and to try to help her. Many days she was on a very smooth and even keel, but as reported to me by at least four or five teachers, they did not know when she would suddenly burst forth with some misbehavior for which we could determine no reason.'

Because of his deep concern he called in the family and he recommended medical attention for the child. Before the date of the attack he asked the Bureau of Child Guidance on several occasions to have her examined concering her emotional stability. Despite his requests, the Bureau failed to cause the examination to be made. Had the Bureau heeded his request an investigation and determination thereon would have been made concerning future treatment for the child.

On the day in question a substitute teacher was in charge of the class. It is conceded that an attack was made by this other student upon the infant plaintiff. The record of the infant plaintiff shows her characteristics as follows:

'Courtesy outstanding. Dependability outstanding. Cooperation outstanding. Self-control satisfactory. Social participation satisfactory. Other personality traits: Very aggressive. This is the kind of child who does not take a back-seat. She steps forward and speaks up.'

The principal described the word 'aggressive' to indicate a cooperative aggressiveness rather than a malicious aggressiveness, one in which a child seeks to do the right things in class and does not hesitate to step forward to do so.

According to the infant plaintiff's testimony, she gave no cause to the other student to attack her nor was the substitute teacher aware of any friction in the classroom. The occurrence took place at a time when the children had lined up in preparation for a change of period when the bell rang. The injuries, as described by the plaintiff and her doctor, were not contradicted by any testimony offered by the defendant.

In view of the fact that the principal and the substitute teacher had been called as witnesses by the plaintiff, the defendant called no witnesses but rested upon the plaintiffs' case.

When the attack took place the substitute teacher attempted to intervene but became aware of her inability to stop the assault because the other student attempted then to strike the teacher, whereupon the teacher summoned a female shop teacher from across the hall who entered the room, blew a whistle and then the fracas stopped. The substitute teacher testified that she was never told by anyone concerning the behavior of the other student. The principal testified that he had never told the substitute teacher about the misconduct of this other student. This substitute teacher had been teaching this class for either one or two days. She had taught this class on one occasion several weeks before. Nothing in her contact with this other student sufficiently alerted her to suspect that an attack such as this would take place.

The defendant contends that the plaintiff failed to make out a prima facie case and relies upon the following series of cases: Ohman v. Board of Education of City of New York, 1949, 300 N.Y. 306, 90 N.E.2d 474, reargument denied 1950, 301 N.Y. 662, 93 N.E.2d 927; Wilber v. City of Binghamton, 3rd Dept., 1946, 271 App.Div. 402, 66 N.Y.S.2d 250, affirmed 1947, 296 N.Y. 950, 73 N.E.2d 263; Curcio v. City of New York, 1937, 275 N.Y. 20, 9 N.E.2d 760; Bertola v. Board of Education et al., 2nd Dept., 1956, 1 A.D.2d 973, 150 N.Y.S.2d 831; Blume v. City of Newburgh, 2nd Dept., 1942, 265 App.Div. 965, 38 N.Y.S.2d 950, affirmed 1943, 291 N .Y. 739, 52 N.E.2d 958; Clark v. City of Buffalo, 1942, 288 N.Y. 62, 41 N.E.2d 459; Berner v. Board of Education, Union Free School Dist. No. 1, North Tonawanda, 1941, 286 N.Y. 174, 36 N.E.2d 100; Graff v. Board of Education of City of New York, 2nd Dept., 1939, 258 App.Div . 813, 15 N.Y.S.2d 941, affirmed 1940, 283 N.Y. 574, 27 N.E.2d 438; Thompson v. Board of Education of City of New York, 1939, 280 N.Y. 92, 19 N.E.2d 796; Ginsberg v. Board of Education, 116 N.Y.L.J. 870, App.Term, 2nd Dept., Oct. 14, 1946, affirmed 2nd Dept., 1947, 272 App.Div. 774, 70 N.Y.S.2d 321.

To that impressive list should be added the following for consideration by the Court: Vitagliano v. Board of Education of City of New York, 12 A.D.2d 655, 208 N.Y.S.2d 1015; May v. Board of Education, etc., 269 App.Div. 959, 58 N.Y.S.2d 127; Abbott v. New York Public Library, 263 App.Div. 314, 32 N.Y.S.2d 963; Selleck v. Board of Education, etc., 276 App.Div. 263, 94 N.Y.S.2d 318; and Wiener v. Board of Education of City of New York, 277 App.Div. 934, 98 N.Y.S.2d 608.

In my opinion, in none of these cases was the alleged act of negligence comparable to the one involved herein. In the instant case the principal failed to alert the substitute teacher concerning the misconduct of this other student. Consequently the substitute teacher was not in a position to determine whether any supervisory steps had to be taken by her in regard to the other student. It is clear that the assault itself cannot be the basis for liability of the defendant. It is the failure of the principal to have alerted the substitute teacher, thereby depriving her of the opportunity of using her own judgment, which I believe constitutes the act of negligence in this case.

In Ohman v. Board of Education of City of New York, supra, 300 N.Y. at page 308, 90 N.E.2d at page 474, the question posed was as follows:

'In this tort action for damages for personal injuries suffered by the plaintiff, then a pupil in a public school, we are asked to say that the jury could properly find that it was due to the negligence of the teacher in absenting herself from the classroom.'

There the injury was sustained as a result of the plaintiff being struck in the eye by a pencil thrown by one pupil to another. The teacher was absent from the classroom while doing some other clerical work. The court predicated its finding in favor of the defendant on the following (300 N.Y. at page 309, 90 N.E.2d at page 475):

'Whether it was done mischievously and heedlessly or wantonly and willfully, or with the serious purpose of returning the pencil to its owner, it was the act of an intervening third party which under the circumstances could hardly have been anticipated in the reasonable excercise of the teacher's legal duty toward the plaintiff. As we read the statute applicable to New York City, liability of the board for the acts of a teacher is not dependent upon any new or different rules of common-law negligence.'

In our case, as is clearly evidenced by the principal's testimony, he was aware of this other student's dangerous conduct from the very first day that she was transferred to his school. He testified:

'The child was a source of trouble from almost the first day that she arrived in the school. * * * She disobeyed even the simplest orders and she felt--or she expressed resentment of the...