Genao v. Bd. of Educ. of City of New York

• Decision Date: 15 March 1995
• Docket Number: No. 93 Civ. 5274 (DLC).,93 Civ. 5274 (DLC).
• Citation: 888 F. Supp. 501
• Parties: Eduvigis A. GENAO, Plaintiff, v. The BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

888 F. Supp. 501

Eduvigis A. GENAO, Plaintiff, v. The BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendant.

No. 93 Civ. 5274 (DLC).

United States District Court, S.D. New York.

March 15, 1995.

COPYRIGHT MATERIAL OMITTED

Abraham Jaros, Jaroslawicz & Jaros, New York City, for plaintiff.

Paul A. Crotty, Corp. Counsel, New York City (Barry Berger, of counsel), for defendant.

OPINION & ORDER

COTE, District Judge:

Plaintiff Eduvigis A. Genao ("Genao") is a New York City school teacher who was assaulted by intruders while teaching in her classroom. Genao brings this negligence action under the Court's diversity jurisdiction seeking damages in excess of $50,000 from defendant Board of Education of the City of New York (the "Board"). Before this Court is the Board's motion for summary judgment. For the reasons given below, defendant's motion is granted.

BACKGROUND

For the purposes of this motion, the following facts are undisputed. On December 22, 1992, Genao was assaulted while teaching at P.S. 194, located at 242 West 144th Street in Manhattan. During school hours, four adult intruders, three females and one male, appeared at the door of her classroom and threatened Genao. Accusing her of having physically abused a student on the previous day, one of the female intruders assaulted plaintiff with a metal chair. Genao called for help, and, several minutes later, the school's principal, Mr. Cunningham, arrived and broke up the altercation. Soon after the principal's arrival, the sole school security guard, whose usual post was by the school's front entrance on 144th Street, also arrived at the classroom. As a result of the attack, Genao suffered injuries to her back.

At the time of the incident, P.S. 194 had two doors to the outside. The main entrance faced 144th Street, and the back entrance faced 143rd Street. The sole security guard was posted in the lobby by the main entrance. As a matter of practice, however, the guard did not question persons entering P.S. 194. Genao's classroom, located on the second-floor, was not provided with any communication device that would link her classroom with other parts of the building.

When Genao was assaulted, she was working pursuant to the 1991-95 collective bargaining agreement (the "Contract") between the teacher's union and the Board. Sections A, B, and G of Article Ten (collectively, the "Security Provision") of the Contract concern security in schools. Section A of the Security Provision, titled "Assistance in Assault Cases," deals exclusively with post-assault procedures, including the principal's duty to assist in the investigation of assaults on teachers. Section B, titled "School Safety Plan", charges the principal with the duty of "maintaining security and safety in the school" by means of devising a "comprehensive safety plan." Under Section B, a teacher may protest "a violation of the plan as to him". Section G, titled "Identification Cards", describes an experimental program requiring staff and students in several high schools to use identification cards in order to determine the value of the cards as a device for maintaining security in the school. There is no indication, from the Contract or either party, whether P.S. 194 was selected for participation in this program.

In 1988, when Genao began teaching at P.S. 194, Cunningham told her, "Don't worry. You are in a good school." Aside from the Contract, this is the only statement or promise Genao points to with respect to security at P.S. 194.

SUMMARY JUDGMENT

Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. "The judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Court shall conduct

the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Id. at 250, 106 S.Ct. at 2511. When deciding a motion for summary judgment, a court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994).

DISCUSSION

Genao claims that the Board's negligent actions in

permitting unauthorized persons to enter the plaintiff's classroom at P.S. 194; in failing to have sufficient personnel; in failing to have proper security; in failing to monitor and control persons entering the school; in failing to provide the plaintiff with a safe place to work; in causing and creating a dangerous condition; in assuring the plaintiff of security and failing to provide it; in causing and/or permitting the plaintiff to be assaulted with a metal chair and garbage can; and in breaching its contract with the Teachers Association in which the plaintiff was a direct and intended beneficiary....

Complaint at 3. In its motion for summary judgment, the Board asserts that it cannot be liable to Genao because it had no actionable duty to protect Genao from the attack. In opposition, Genao asserts that summary judgment should be denied because: 1) the Board has refused to provide plaintiff with any discovery; 2) the Board breached its proprietary duty as a landlord; or 3) the Board undertook and breached a special duty to protect plaintiff.

LACK OF DISCOVERY

When the opponent of a motion for summary judgment seeks discovery, she must file an affidavit pursuant to Rule 56(f), Fed.R.Civ.P., explaining:

(1) the information sought and how it is to be obtained; (2) how a genuine issue of material fact will be raised by that information; (3) what efforts the affiant has made to obtain the information; and (4) why those efforts were unsuccessful.

Sage Realty v. Ins. Co. of North America, 34 F.3d 124, 128 (2d Cir.1994), citing Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989). "Additionally, the discovery sought must be material to the opposition of the summary judgment motion." Id. Plaintiff, in the affidavit of Abraham Jaros ("Jaros Affidavit"), specifies information plaintiff needs to respond fully to this motion, and asserts that the Board has refused to provide any discovery to date. Because the discovery materials relate to the alternate theories espoused by plaintiff, the materiality of these requested items will be examined more fully in the section discussing each theory.

NEGLIGENCE

Both of Genao's theories of liability are for negligent acts by the Board. In order to establish a claim of negligence, plaintiff must demonstrate each of following elements: "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 (1985). Genao claims that the Board breached either its proprietary duty as landlord of the school property, or a special duty undertaken to protect plaintiff.

GOVERNMENTAL AND PROPRIETARY DUTIES

Public entities such as the Board, under the doctrine of sovereign immunity, cannot generally be held liable for breach of their governmental duties. Miller v. State of New York, 62 N.Y.2d 506, 510, 478 N.Y.S.2d 829, 467 N.E.2d 493 (1984).¹ In its proprietary capacity as a landlord, however, the Board is held to the same principles of tort law as a private landlord. Id. at 511, 478 N.Y.S.2d 829, 467 N.E.2d 493. Where a public entity acts in both a propriety and governmental capacity, "it is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability," and not the general nature of the entity, that governs. Weiner v. Met. Trans. Auth., 55 N.Y.2d 175, 182, 448 N.Y.S.2d 141, 433 N.E.2d 124 (1982). The entity's conduct

may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the entity's alleged negligent action falls into, either a proprietary or governmental category.

Miller, 62 N.Y.2d at 511-12, 478 N.Y.S.2d 829, 467 N.E.2d 493 (emphasis supplied).

A municipality may not be held liable for injuries resulting from the failure to provide police protection. Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 (1987). This is true even if the failure occurred at a public school. Thus, the provision of security in municipal public schools has repeatedly been found to be a governmental duty, rendering the school immune from liability. In Bonner v. City of New York, 73 N.Y.2d 930, 539 N.Y.S.2d 728, 536 N.E.2d 1147 (1989), the plaintiff was a teacher who was injured while supervising a playground. One of the gates to the playground was off its hinges and could not be locked, so it was plaintiff's responsibility to station himself there for the...