Timothy Mc. v. Beacon City Sch. Dist., 2013-07892, Index No. 5056/09.

• Decision Date: 08 April 2015
• Docket Number: 2013-07892, Index No. 5056/09.
• Citation: 127 A.D.3d 826,2015 N.Y. Slip Op. 02942,7 N.Y.S.3d 348
• Parties: TIMOTHY Mc. (Anonymous), etc., et al., appellants, v. BEACON CITY SCHOOL DISTRICT, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 826

7 N.Y.S.3d 348

2015 N.Y. Slip Op. 02942

TIMOTHY Mc. (Anonymous), etc., et al., appellants

v.BEACON CITY SCHOOL DISTRICT, et al., respondents, et al., defendant.

2013-07892, Index No. 5056/09.

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

April 8, 2015.

Ronald K. Friedman, Esq., PLLC (Thomas Torto and Jason Levine, New York, N.Y., of counsel), for appellants.

Rutherford & Christie, LLP, New York, N.Y. (Gerald S. Smith and Lewis R. Silverman of counsel), for respondents.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Opinion

In an action, inter alia, to recover damages for negligence, assault, and battery, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated June 12, 2013, as granted those branches of the motion of the defendants Beacon City School District and Lorraine Torell which were for summary judgment dismissing the second, fourth, and fifth causes of action insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants Beacon City School District and Lorraine Torell which were for summary judgment dismissing the second, fourth, and fifth causes of action insofar as asserted against them are denied.

This action arises out of a series of interactions between GM, an infant who suffers from severe mental disabilities, and the defendant Lorraine Torell. The interactions occurred on a bus operated by the defendant Beacon City School District (hereinafter the school district). At the relevant time, Torell was employed by the school district as a bus monitor to attend to GM on the bus. The plaintiffs, the parents of GM, commenced this action, alleging that Torell injured GM by physically and mentally abusing him. The second cause of action alleged that the school district was negligent in its supervision of GM, and negligent in its supervision and training of Torell. The fourth and fifth causes of action alleged assault and battery, respectively. The school district and Torell (hereinafter together the school defendants) moved for summary judgment dismissing the complaint insofar as asserted against them, and the Supreme Court granted the motion.

We agree with the plaintiffs that the Supreme Court erred in granting those branches of the school defendants' motion which were for summary judgment dismissing the second, fourth, and fifth causes of action insofar as asserted against them. Here, the school defendants failed to make their prima facie showing of entitlement to judgment as a matter of law with respect to the second, fourth, and fifth causes of action. Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see Brandy B. v. Eden Cent. School Dist., 15 N.Y.3d 297, 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 ; Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Ghaffari v. North Rockland Cent. School Dist., 23 A.D.3d 342, 343, 804 N.Y.S.2d 752 ; Doe v. Rohan, 17 A.D.3d 509, 511, 793 N.Y.S.2d 170 ; Doe v. Orange–Ulster Bd. of Coop. Educ. Servs.,

4 A.D.3d 387, 388, 771 N.Y.S.2d 389 ). The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information (see David v. County of Suffolk, 1 N.Y.3d 525, 526, 775 N.Y.S.2d 229, 807 N.E.2d 278 ; Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Kelly G. v. Board of Educ. of City of Yonkers, 99 A.D.3d 756, 758, 952 N.Y.S.2d 229 ; Doe v. Rohan, 17 A.D.3d at 511, 793 N.Y.S.2d 170 ; Doe v. Orange–Ulster Bd. of Coop. Educ. Servs., 4 A.D.3d at 388, 771 N.Y.S.2d 389 ). Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable (see Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Kelly G. v. Board of Educ. of City of Yonkers, 99 A.D.3d at 758, 952 N.Y.S.2d 229 ; Dia CC. v. Ithaca City School Dist., 304 A.D.2d 955, 956, 758 N.Y.S.2d 197 ).

Contrary to the Supreme Court's determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of Torell's propensity to engage in the misconduct alleged. In fact, the evidence submitted in support of the school defendants' motion suggested that the school district had received prior complaints of Torell's misbehavior toward students on the bus. Because the school defendants failed to make a prima facie showing of entitlement to judgment as a matter of law with respect to the allegation of negligent supervision of GM, the burden never shifted to the plaintiffs to establish the existence of triable issues of fact in that regard (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Consequently, the court should not have directed the dismissal of the second cause of action insofar as it alleged that the school district was negligent in supervising GM.

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs' second cause of action insofar as it alleged negligent supervision and training of Torell. A necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see Peter T. v. Children's Vil., Inc., 30 A.D.3d 582, 586, 819...