Swaitkowski v. Board of Ed. of City of Buffalo
| Decision Date | 18 February 1971 |
| Citation | 319 N.Y.S.2d 783,36 A.D.2d 685 |
| Parties | Joseph Paul SWAITKOWSKI, an infant, by his guardian ad litem, Joseph Swaitkowski and Joseph V. Swaitkowski, Individually, Respondents v. BOARD OF EDUCATION OF the CITY OF BUFFALO, Appellant. * * State Report Title: Swiatkowski v. Board of Ed. of City of Buffalo |
| Court | New York Supreme Court — Appellate Division |
Brownstein, Canale, Madden & Brownstein, Aaron Weinstein, Buffalo, for respondents.
Anthony Manguso, Corp. Counsel, John J. Madden, Buffalo, for appellant Bd. of Education of City of Buffalo.
Before DEL VECCHIO, J.P., and MARSH, WITMER, GABRIELLI and MOULE, JJ.
Judgment has been entered in an action for personal injuries sustained by a 7 year old boy while attending class in a public school when he returned to his desk and sat on the point of a pencil placed in his seat by another student. Appeal is taken from the judgment based on a verdict in the personal injury action for $3,000 and a verdict in the derivative action for $2,343, the exact amount of the medical expenses.
Unquestionably the incident occurred during the absence of the teacher who had been called upon by a fellow-teacher to locate some books in the book room. She remained away for but a very short time, during which she was 10 1/2 feet away from her room and the doors to both rooms were open. There is no support in the record for any claim that the defendant Board failed to select and employ competent personnel, or that defective equipment was a proximate producing cause of the accident.
In effect, respondents would impose upon the Board a duty to require a teacher to call for outside assistance during her short absence from the classroom. Upon the facts of this case, we cannot so hold. A contrary holding in the circumstances of this case would effectively impose on both a school board and teacher a standard of care akin to an insurer rather than the standard of a reasonable and prudent parent.
Nor can respondents prevail on their claim of inadequate supervision by the teacher in leaving the classroom unattended for the short space of time she was required to be absent. As in Ohman v. Board of Educ. of City of N.Y., 300 N.Y. 306, 90 N.E.2d 474, the injury resulted from 'the act of an intervening third party which under the circumstances could hardly have been anticipated in the reasonable exercise of the teacher's legal duty toward the plaintiff' (p. 309, 90 N.E.2d p. 475) and which act was 'one of...
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