Mirand v. City of New York

• Decision Date: 25 May 1993
• Citation: 190 A.D.2d 282,598 N.Y.S.2d 464
• Parties: , 83 Ed. Law Rep. 372 Virna MIRAND and Vivia Mirand, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant, and The Board of Education of the City of New York, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 464

598 N.Y.S.2d 464

190 A.D.2d 282, 83 Ed. Law Rep. 372

Virna MIRAND and Vivia Mirand, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant and The Board of Education of the City of New York, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

May 25, 1993.

Alexander J. Wulwick, New York City, of counsel (Roura & Melamed, attorneys), for plaintiffs-appellants.

Michael S. Adler, New York City, of counsel (Francis F. Caputo, with him on the brief, O. Peter Sherwood, Corp. Counsel, attorney), for defendant-respondent.

Before SULLIVAN, J.P., and MILONAS, ROSS, KASSAL and RUBIN, JJ.

SULLIVAN, Justice Presiding.

This is an appeal from an order setting aside a verdict against the Board of Education of the City of New York in favor of plaintiffs Virna and Vivia Mirand for $50,000 and $750,000, respectively, and dismissing the complaint for failure, as a matter of law, to establish liability.

Plaintiffs are sisters and, at the time of the incident in question, were students at Harry S. Truman High School, which is part of the Northeast Bronx Educational Park, a complex near Co-op City comprised of five schools. On September 20, 1982, Virna, seventeen and in her fourth year at the high school, had finished her last class, which ended at 2 p.m. It was her custom to wait for Vivia, a third-year student, whose last class ended at 2:40 p.m., on the main steps outside the school. As Virna descended a stairway, she inadvertently bumped shoulders with another student, later identified as Donna Webster, with whom she never had any difficulty before. Virna, whose attention had been diverted at the time of the bumping, immediately apologized. Donna, however, believing the contact to have been intentional, cursed at Virna and attempted to kick her. According to Virna, as she released Donna's leg after blocking the kick, Donna said "she was going to kill me." A bystander separated the two students.

After the encounter, Virna continued to the first floor, where she happened to meet her sister, to whom she related her experience. Vivia suggested that Virna report the matter to the security office, which was on the first floor near the front entrance to the building. Virna went to the office and knocked on the door but received no response. She testified that she then walked down the first-floor hallway and met a woman, whose name she did not know, but whom she was able to describe and knew to be an art teacher. She told the teacher about the incident, specifically that "I just had a fight on the stairwell and someone had threatened me and I went to the office and no one was there...." Virna was not allowed to testify as to what the art teacher did or said in response. Virna also conceded that, when asked during an examination before trial six years earlier for an account of all her activities, she had made no mention in her response of any such report to a teacher.

After the conversation with the art teacher, Virna returned to the security office, knocked on the door and again received no response. She then proceeded to the second floor and exited the building through the second-floor main entrance to wait for Vivia on the veranda, where school security officers and police officers were sometimes present. None, however, were present that day. After a wait of about one-half hour, Vivia arrived. The sisters, joined by other students leaving school, began to walk down one of the bi-level staircases outside the building.

As they arrived at the first landing and turned toward the second set of stairs, Virna saw Donna Webster and two male companions blocking her path. In an effort to avoid Donna, who was cursing and taunting her, Virna and her sister walked around the railing in the center of the final set of stairs and continued their descent. As Virna and her sister proceeded, Donna struck Virna with a hammer, once on the elbow and twice on the head. When Vivia tried to seize the hammer, she was struck in the back by a young girl. Then, a boy, later identified as Donna's brother, a non-student, who, when Vivia had just before encountered him on the stairway, had said, "[N]obody is going to jump my sister", stabbed her in the wrist with a knife. No police or school security officers were present at the time.

Virna, complaining of head and elbow pain and bleeding from the head, after being seen at the school nurse's office, was taken to Jacobi Hospital where her scalp was stitched and she was given pain medication. She returned twice to the hospital complaining of headaches and the appearance of black spots in front of her eyes. Her headaches continued "off and on" for about six months after the incident.

After having her left hand wrapped in the school nurse's office, Vivia, fearful, in pain and unable to move the fingers of the affected hand, was brought to Jacobi Hospital, where she was operated on under general anesthesia and her hand placed in a cast. She was hospitalized for seven days. After two or three months, the cast was removed and she underwent physical therapy twice weekly for about six months. Despite the therapy, the wrist was somewhat crooked, turning to the right; the pinky and ring fingers hung downward; the pinky finger lacked feeling and the ring finger was slightly numb. Vivia returned to the hospital, which referred her to a plastic surgeon, who performed a second surgical procedure, requiring further hospitalization for six days. The operation straightened her fingers somewhat but the pinky remains misaligned. Vivia underwent three further minor surgical procedures in the plastic surgeon's office.

Despite these procedures, Vivia's left hand has not returned to normal. Her ability to bend the hand is limited as is the movement of the fingers, as a result of which she cannot grasp properly. She experiences pain when the hand is bumped, sharp pain extending to her shoulder in cold weather and numbness. She had to discontinue a computer skills course because the problems with her hand interfered with her typing. She also has some scarring from the incisions; they are described as unsightly and are a source of embarrassment to her.

In the fall of 1982, there were thirteen school safety officers, trained in security operations, who wore uniforms and carried radios but no guns, assigned to the high school. They operated out of a first-floor security office, which served the entire Northeast Bronx Educational Park. Inside the first-floor main entrance, there was also a security desk, to which a security officer was assigned at all times for the purpose of screening visitors. Since most students left the building at 2:40 p.m., after the eighth period, they were encouraged, so as to promote security, to leave through a few preferred exits, the two first-floor exits leading to the sidewalk, the two rear exits on either side of the field house and the second-floor main entrance. School safety officers stationed throughout the building were expected to cover the exits at dismissal time; ideally, the security desk on the first floor would be manned by three officers; similarly, two to five school safety officers would be assigned to the second-floor main entrance. The security plan for the school did not require that any of those officers be stationed outside the building on the second-floor veranda, which extended all the way around the building. Nor were there any rules or regulations of the Board of Education requiring the posting of security officers on the veranda at dismissal time.

The teachers and paraprofessionals were also expected to assist in providing security. A teacher to whom a school incident was reported was to exercise independent judgment as to how to proceed, handling the matter alone if, in the teacher's judgment, the incident was a minor one, or seeking the assistance of another, a dean or administrator, for instance, if the incident was more serious. The security coordinator for the Northeast Bronx Educational Park complex had no recollection as to how many fights had occurred at the school between the fall of 1981 and the summer of 1982; nor did he have any recollection as to whether the school safety officers assigned to the first and second floors at dismissal time were at their posts at the time of this incident or were attending to matters elsewhere.

The only theory submitted to the jury was negligent supervision. The jury was asked to determine whether the Board had actual or constructive notice of danger to the sisters. Only if it determined that such notice was present was the jury to consider whether the Board failed to provide adequate supervision. In that regard, the jury was asked to consider whether the school failed to carry out its own safety guidelines. The jury returned a verdict as indicated.

Without specifically addressing any other aspect of the Board's post-trial motion, the IAS court, "with great reluctance", granted the motion to the extent of finding that plaintiffs' evidence was insufficient as a matter of law to establish liability for negligent supervision. It based its determination on three specific findings: lack of notice of a specific danger, lack of proof as to any inadequacy in supervision and lack of proof of proximate cause since plaintiffs adduced no evidence that conformity to reasonable standards would have prevented the incident. We reverse and reinstate the verdict.

On a challenge to the sufficiency of a verdict in favor of a plaintiff, the evidence in support thereof must be accepted as true and viewed in the light most favorable to the plaintiff. (Alexander v. Eldred, 63 N.Y.2d 460, 464, 483 N.Y.S.2d 168, 472 N.E.2d 996.) "For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence ... [i]t is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion...