Maness v. City of New York

• Decision Date: 15 February 1994
• Citation: Maness v. City of New York, 607 N.Y.S.2d 325, 201 A.D.2d 347 (N.Y. App. Div. 1994)
• Parties: , 89 Ed. Law Rep. 205 Jewell MANESS, etc., Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants -Respondents.
• Court: New York Supreme Court — Appellate Division

Page 325

607 N.Y.S.2d 325

201 A.D.2d 347, 89 Ed. Law Rep. 205

Jewell MANESS, etc., Plaintiff-Appellant, v.The CITY OF NEW YORK, et al., Defendants -Respondents.

Supreme Court, Appellate Division First Department.

Feb. 15, 1994.

Before SULLIVAN, J.P., and ROSENBERGER, ROSS, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County(Howard R. Silver, J.), entered February 25, 1991, which granted the defendant's motion to set aside a jury verdict in favor of the plaintiff and dismissed the complaint, unanimously affirmed, without costs.

The plaintiff instituted this action to recover for the wrongful death of her thirteen year old son who was shot to death on January 11, 1983 in the vicinity of the Roberto Clemente Junior High School during lunch hour.After playing football in the area, the decedent and his friend sat on top of a parked car to wait for the bell announcing the resumption of class.The school permitted students to leave the building or eat in the cafeteria.Those who ate in the school were required to leave the building after finishing lunch.An argument erupted which resulted in a boy from another school pulling out a gun and shooting the decedent.

The plaintiff maintained that the decedent's death was due to the defendant's inadequate supervision.Although school policy provided for four or five staff members to be outside monitoring the activities, fewer were actually on duty.According to a student who witnessed the shooting, no staff members had been in the vicinity at the time of the incident.The jury returned a verdict in favor of the plaintiff.The trial court, however, granted the defendant's motion to set aside the verdict and dismissed the complaint.The court found that the decedent voluntarily left the custody of the school and that since his injuries resulted from the intervening acts of a third party, "(t)here is no factual basis to conclude that defendant had any actual knowledge constituting notice of a particular danger at a particular time or could it be anticipated that an altercation between other boys would cause injury to [the decedent]."In sum, the court concluded that the supervision by the defendant was adequate.

While we disagree with the reasoning of the Supreme Court, upon viewing the evidence in a light most favorable to the plaintiff(Alexander v. Eldred, 63 N.Y.2d 460, 483 N.Y.S.2d 168, 472 N.E.2d 996;Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145), the evidence was insufficient as a matter of law to support the jury's verdict that the lack of supervision of the students was the proximate cause of the decedent's death.

The Board of Education has a duty to exercise the " 'same degree of care and supervision over the pupils under its control as a reasonably prudent parent would exercise under the same circumstances' "(Logan v. City of New York, 148 A.D.2d 167, 171, 543 N.Y.S.2d 661, quotingPJI 2:227;and see, Mirand v. City of New York, 190 A.D.2d 282, 287-288, 598 N.Y.S.2d 464).Contrary to the conclusion reached by the Supreme Court, the decedent did not leave the custody of the school when he went outside during the lunch hour (see, Pratt v. Robinson, 39 N.Y.2d 554, 384 N.Y.S.2d 749, 349 N.E.2d 849;Spiegler v. School Dist. of the City of New Rochelle, 17 N.Y.2d 528, 267 N.Y.S.2d 908, 215 N.E.2d 165;cf., Griffith v. City of New York, 123 A.D.2d 830, 507 N.Y.S.2d 445, lv. denied, 69 N.Y.2d 729, 512 N.Y.S.2d 368, 504 N.E.2d 695).Students were permitted to leave the building during the recess and,...