Hale v. Holley Cent. Sch. Dist.

• Decision Date: 23 March 2018
• Docket Number: 13,CA 17–01421
• Citation: Hale v. Holley Cent. Sch. Dist., 159 A.D.3d 1509, 72 N.Y.S.3d 700 (N.Y. App. Div. 2018)
• Parties: Darwin HALE, Jr., Individually and as Parent and Natural Guardian of Jeffery Hale, a Minor, Plaintiff–Respondent, v. HOLLEY CENTRAL SCHOOL DISTRICT, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1509

72 N.Y.S.3d 700

Darwin HALE, Jr., Individually and as Parent and Natural Guardian of Jeffery Hale, a Minor, Plaintiff–Respondent,

v.HOLLEY CENTRAL SCHOOL DISTRICT, Defendant–Appellant.

13

CA 17–01421

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: March 23, 2018

HURWITZ & FINE, P.C., BUFFALO (JODY E. BRIANDI OF COUNSEL), FOR DEFENDANT–APPELLANT.

LAW OFFICE OF MARK A. YOUNG, ESQ., ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDERMemorandum:

Plaintiff commenced this action, individually and on behalf of his son, a ninth-grade student at defendant's high school. Plaintiff's son was injured in April 2012 when an 11th-grade classmate unexpectedly walked up behind him before gym class and put him in a choke hold, causing him to lose consciousness and fall face-first against the floor. We agree with defendant that Supreme Court erred in denying its motion for summary judgment dismissing the complaint.

It is well established that "[s]chools are under a duty to adequately supervise the students in their charge[,] and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ( Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994] ; see Brandy B. v. Eden Cent. Sch. Dist., 15 N.Y.3d 297, 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 [2010] ). "Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable ‘for every thoughtless or careless act by which one pupil may injure another’ " ( Mirand, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ). "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" ( id. ; see Brandy B., 15 N.Y.3d at 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 ). "Actual or constructive notice to the school of prior similar conduct is generally required because, obviously, school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily" ( Mirand, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ). Thus, "an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act" ( id. ). "Summary judgment must be granted if the proponent makes ‘a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,’ and the opponent fails to rebut that showing" ( Brandy B., 15 N.Y.3d at 302, 907 N.Y.S.2d 735, 934 N.E.2d 304, quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).

Here, defendant met its initial burden on its motion by establishing that it did not have "sufficiently specific knowledge or notice of the dangerous conduct which caused injury" such that the classmate's acts "could reasonably have been anticipated" ( Mirand, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ), and plaintiff failed to raise a triable issue of fact (see generally Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Defendant's submissions, including the deposition testimony of plaintiff's son and the classmate, established that there were no prior incidents and no history of any animosity between the two students (see De Munda v. Niagara Wheatfield Bd. of Educ., 213 A.D.2d 975, 976, 625 N.Y.S.2d 764 [4th Dept. 1995] ). Indeed, the classmate testified that he intended only to "horse around" and that he "[d]idn't mean anything by it." Moreover, the classmate had never engaged in disorderly, insubordinate, disruptive, or violent conduct in any of the gym teacher's classes prior to the subject incident. Contrary to plaintiff's contention and the court's determination, we agree with defendant that the classmate's overall disciplinary record is insufficient to create an issue of fact whether the subject incident could reasonably have been anticipated. Although the classmate had an extensive disciplinary history, the majority of the incidents involved insubordinate and disruptive behavior, and the instances of violent and endangering conduct occurred when the classmate was in sixth through eighth grade, with his last citation for violent conduct occurring in April 2009, i.e., three years prior to the subject incident when the classmate was in 11th grade (see Morman v. Ossining Union Free Sch. Dist., 297 A.D.2d 788, 789, 747 N.Y.S.2d 586 [2d Dept. 2002] ). We thus conclude that the classmate's prior violent and endangering conduct was too remote to provide defendant with sufficiently specific knowledge or notice that the classmate posed a danger to other students in gym class (see Jake F. v. Plainview–Old Bethpage Cent. Sch. Dist., 94 A.D.3d 804, 805–806, 944 N.Y.S.2d 152 [...