Malik v. Greater Johnstown Enlarged School Dist.

• Decision Date: 05 March 1998
• Citation: Malik v. Greater Johnstown Enlarged School Dist., 669 N.Y.S.2d 729, 248 A.D.2d 774 (N.Y. App. Div. 1998)
• Parties: , 124 Ed. Law Rep. 1025, 1998 N.Y. Slip Op. 1920 Richard MALIK et al., Individually and as Parents and Guardians of Jason Malik, an Infant, et al., Respondents, v. GREATER JOHNSTOWN ENLARGED SCHOOL DISTRICT, Appellant, and Daniel O'Donnell, as Parent and Guardian of Steven L. O'Donnell, an Infant, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 729

669 N.Y.S.2d 729

248 A.D.2d 774, 124 Ed. Law Rep. 1025,

1998 N.Y. Slip Op. 1920

Richard MALIK et al., Individually and as Parents and Guardians of Jason Malik, an Infant, et al., Respondents, v. GREATER JOHNSTOWN ENLARGED SCHOOL DISTRICT, Appellant and Daniel O'Donnell, as Parent and Guardian of Steven L O'Donnell, an Infant, et al., Respondents.

Supreme Court, Appellate Division Third Department.

March 5, 1998.

Kevin A. Moss (Michael J. Hutter, of counsel), Altamont, for appellant.

Felt, Evans, Panzone, Bobrow & Hallak (Mark P. Malak, of counsel), Clinton, for Daniel O'Donnell and another, respondents.

Diane D. Foody (Richard T. Aulisi, of Aulisi & Skoda, Gloversville), Clifton Park, for Richard Malik and others, respondents.

Before CARDONA, P.J., and MERCURE, WHITE, SPAIN and CARPINELLO, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Ferradino, J.), entered October 23, 1996 in Fulton County, which denied a motion by defendant Greater Johnstown Enlarged School District for summary judgment dismissing the complaint and all cross claims against it.

This action arises out of a March 22, 1993 incident involving students at Johnstown High School in Fulton County. While defendant Steven L. O'Donnell was walking in a school hallway during the school's "open lunch" period, he picked up a metal fragment (a portion of the "U" from a broken padlock) that another student had just dropped on the floor and impulsively threw it in the direction of the girls' locker room door, tragically striking plaintiff Jason Malik in the eye and injuring him. As relevant here, the claim of liability against defendant Greater Johnstown Enlarged School District is premised upon an alleged breach of its duty to adequately supervise its students. Following joinder of issue and discovery, the school district moved for summary judgment dismissing the complaint and all cross claims against it. Supreme Court denied the motion and the school district now appeals. Because we conclude that plaintiffs failed to oppose the school district's prima facie showing with competent evidence sufficient to raise a legitimate question of fact on the issue of the school district's negligence, we are constrained to reverse Supreme Court's order and grant judgment dismissing the complaint and all cross claims against the school district.

Fundamentally, a school is not an insurer of the safety of its students; it is, nonetheless, obligated to adequately supervise the activities of the students under its care and will be held liable for foreseeable injuries which are proximately related to the absence of supervision (see, Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263; Hanley v. Hornbeck, 127 A.D.2d 905, 512 N.Y.S.2d 262; Cavello v. Sherburne-Earlville Cent. School Dist., 110 A.D.2d 253, 494 N.Y.S.2d 466, appeal dismissed 67 N.Y.2d 601, 499 N.Y.S.2d 1027, 490 N.E.2d 555). Recently, the Court of Appeals had occasion to consider the scope of a school's duty of care in connection with injuries sustained by one student at the hand of another, stating:

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. * * * 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; 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 (Mirand v. City of New York, supra, at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [citations omitted] ).

In this case, Supreme Court relies upon past instances of antisocial behavior on O'Donnell's part, the...