Nash v. Port Wash. Union Free Sch. Dist.

• Decision Date: 12 April 2011
• Citation: 2011 N.Y. Slip Op. 03040,83 A.D.3d 136,922 N.Y.S.2d 408,266 Ed. Law Rep. 915
• Parties: Marguerite NASH, etc., respondent,v.PORT WASHINGTON UNION FREE SCHOOL DISTRICT, appellant(and a third-party action).
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 136

922 N.Y.S.2d 408

266 Ed. Law Rep. 915

2011 N.Y. Slip Op. 03040

Marguerite NASH, etc., respondent,

v.PORT WASHINGTON UNION FREE SCHOOL DISTRICT, appellant(and a third-party action).

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

April 12, 2011.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant.Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, N.Y. (Rhonda E. Kay and Richard M. Steigman of counsel), for respondent.JOSEPH COVELLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.DICKERSON, J.Introduction

The infant Stephen A. Nash (hereinafter the plaintiff), on whose behalf his mother, Marguerite Nash, commenced this action, sustained severe injuries as a result of an explosion that occurred in his high school's science laboratory. It is undisputed that the teacher assigned to supervise the plaintiff and another student departed from school premises, leaving the two students completely unsupervised. Among the primary issues presented on this appeal, we consider the applicable duty of care when an incident occurs after the formal end of classes for the day, but in an academic setting on school premises involving a course completed for academic credit. We also address the foreseeability of the circumstances leading to the explosion, and whether the accident occurred in so short a span of time that the teacher could not have prevented the plaintiff's injury regardless of the level of supervision. Ultimately, we hold that the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendant, Port Washington Union Free School District (hereinafter the school district), breached its duty to exercise the level of care as would a parent of ordinary prudence in comparable circumstances, and that this failure was a proximate cause of the plaintiff's injuries. In opposition, the school district failed to raise a triable issue of fact. Moreover, on the school district's cross motion, it failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law dismissing the complaint. Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability, and properly denied the School District's cross motion for summary judgment dismissing the complaint.

FACTUAL BACKGROUND

In April 2007 the plaintiff was a sophomore honors student at the Paul D. Schreiber High School (hereinafter the high school), in Port Washington. The high school was a part of the school district. The plaintiff also was in a Science Research Program (hereinafter SRP) that the school district offered for its academically qualified students. Students accepted into the SRP had to commit to, and remain in, the SRP throughout their entire sophomore, junior, and senior years. The SRP was taught by Ms. Serfaty, a teacher at the high school. At all times relevant here, only nine students were in the SRP.

On Thursday, April 12, 2007, after the end of classes, a fellow student (hereinafter the third-party defendant), who, like the plaintiff, was a sophomore honors student at the high school and in the SRP, informed the plaintiff that he was going to one of the high school's science research laboratories (hereinafter the lab) to work on an ongoing SRP project related to cell culturing. The third-party defendant indicated that Serfaty, who was supervising the project, was waiting in the lab for him. The plaintiff agreed to accompany the third-party defendant to “keep him company.”

In addition to standard classroom facilities, the lab was equipped with lab tables, incubators, flow hoods, and other equipment for scientific study and research. The lab contained Bunsen burners, but they were required to be stored in cabinets. The lab was also equipped with a fire extinguisher and a fire blanket.

When the plaintiff and the third-party defendant arrived at the lab, Serfaty let them in. At that time, there was no one present in the lab other than the plaintiff, the third-party defendant, and Serfaty. The third-party defendant began to work on his project, and the plaintiff sat on a nearby stool. After some time, Serfaty suggested to the plaintiff that he “make [himself] useful and clean up the room,” so the plaintiff began to do so. During the time the plaintiff spent cleaning the room, the third-party defendant continued to work on his project under the flow hood, and Serfaty returned to and stayed in an office adjacent to the lab.

At approximately 4:15 P.M., Serfaty elected to leave the high school premises to go to the Bagel Boss, a deli within walking distance of the school, to buy something to eat, leaving the two boys unsupervised in the lab. She anticipated that she would be away from the high school for approximately 20 minutes.

Serfaty acknowledged that she was aware of school policy, which included a rule that students may not be left unattended in classrooms. However, in her deposition testimony, she maintained that there was an “understanding” that was “part of the culture of the building” that this rule applied only during regular school hours, as opposed to after the traditional school day. Serfaty testified that, if the rule was that students were required to be supervised under circumstances such as those at issue here, the rule was previously “not adhered to.”

In this regard, the third-party defendant did not characterize his science project as “extracurricular.” He observed that there was time allotted in his school schedule for such projects, and he would receive a grade for his work on the project.

Additionally, Jay Lewis, Principal of the high school, testified at his deposition that the high school had a policy pursuant to which students were not to be left alone in a room. When asked if it were true that this policy was not followed in connection with after-school activities, Lewis responded “[that] is not correct.” Lewis stated that, “on multiple occasions, in full faculty gatherings, meetings, as well as at other times, I and the building administrators always made it clear that students were to be supervised at all times, before, during and after school, in any type of classroom or classroom-related setting, which would include extra help, clubs and activities and after-school activities, sports, anything. I never made a distinction between before and after-school activities and supervision of students during the school day.” When asked if there was a custom or practice among faculty members that this rule was not to be followed in connection with after-school activities, Lewis responded in the negative. Lewis also stated that it would not have been adequate for a teacher to remain in an office while students were performing an experiment in the adjacent lab.

After Serfaty left the two boys alone in the lab, the third-party defendant emerged from the flow hood. According to the plaintiff, the third-party defendant went to one of the hexagonal lab tables and began to clean his hands with ethyl alcohol. The plaintiff had seen the third-party defendant do this in the past, as the third-party defendant was attempting to minimize “contamination with the cell cultures.” The plaintiff returned to the stool where he had been seated previously. The third-party defendant then began to walk back and forth while talking to the plaintiff, as the third-party defendant “doesn't really stand still.” According to the plaintiff, the third-party defendant also always needed to keep his hands occupied, and, to this end, he carried with him a wire he would constantly manipulate with his hands. The third-party defendant had been diagnosed with attention deficit hyperactivity disorder, and the plaintiff was aware that the third-party defendant took medication for this condition.

According to the plaintiff, at some point, the third-party defendant picked up a spark lighter that was on a nearby table. The third-party defendant and the plaintiff continued to talk, and the third-party defendant struck the spark lighter several times.

The third-party defendant, too, testified at his deposition “I believe I was holding a [spark lighter]” in the moment before the explosion. Prior to the explosion, he had been sterilizing the surfaces in the vicinity of his project, including the table top and his gloved hands, with ethyl alcohol. The third-party defendant acknowledged that, in the instant before the explosion, “I might have activated it, I activated it, yes.” He did not recall how many times he manipulated the spark lighter. The third-party defendant believed that, at the time, he was holding the spark lighter over a beaker which may have contained ethyl alcohol. He believed he was attempting to “flare off” the excess alcohol. According to the third-party defendant, he had seen Serfaty demonstrate this procedure to another student two weeks earlier.

The plaintiff testified at his deposition that his next perception after the third-party defendant struck the spark lighter was of being face down on the floor. The plaintiff assumed that there had been an explosion. When the plaintiff raised his head from the floor, he felt the flesh on his face, body, and hands burning. The plaintiff dropped to the floor and rolled around to extinguish the flames. The third-party defendant was screaming hysterically. The plaintiff looked at the third-party defendant, and saw that he was burned as well. The plaintiff then retrieved the fire extinguisher and extinguished the fire on the lab table and a nearby computer table. The third-party defendant testified that he (the third-party defendant) put out the fire.

As a result of the incident, the plaintiff sustained severe second-and third-degree burns on much of his body. He required weeks...