Wenger v. Goodell

• Decision Date: 29 November 2001
• Citation: 733 N.Y.S.2d 523,288 A.D.2d 815
• Parties: WALTER S. WENGER, Individually and as Parent and Guardian of STEVEN J. WENGER, an Infant, Respondent,<BR>v.<BR>SCOTT A. GOODELL, Defendant, and CANASTOTA CENTRAL SCHOOL DISTRICT, Appellant.
• Court: New York Supreme Court — Appellate Division

288 A.D.2d 815

733 N.Y.S.2d 523

WALTER S. WENGER, Individually and as Parent and Guardian of STEVEN J. WENGER, an Infant, Respondent,

v.SCOTT A. GOODELL, Defendant, and CANASTOTA CENTRAL SCHOOL DISTRICT, Appellant.

Decided November 29, 2001.

Crew III, Mugglin, Rose and Lahtinen, JJ., concur.

Cardona, P. J.

As detailed in this Court's earlier decision (220 AD2d 937), this action arises out of an automobile accident which occurred on March 8, 1991, in the Town of Lenox, Madison County.On that day, Steven J. Wenger, a 15-year-old student at the Canastota Junior-Senior High School, chose not to utilize the bus transportation offered by defendantCanastota Central School District(hereinafter the school district) to go home and accepted a ride from defendantScott A. Goodell, another student.The vehicle was involved in an accident resulting in injuries to Wenger.On one occasion prior to this accident, plaintiff, Wenger's father, observed Goodell dropping his son home which was contrary to his wish that his son use the school bus.

Plaintiff, as Wenger's parent and guardian, commenced this action against the school district and Goodell.Following joinder of issue, the school district moved for summary judgment contending that there was no breach of duty as a matter of law and no circumstances supporting a finding that the school district voluntarily assumed a special duty with respect to plaintiff's son.Supreme Court granted the motion, however, this Court reversed, holding that, based on the record before us at that time, a factual issue was presented as to whether defendant had assumed a special duty in favor of plaintiff(id.).Specifically, we noted that while the school district "initially had no duty to prevent Wenger from leaving the school premises as a passenger in Goodell's car,"plaintiff's submissions raised a question of fact as to whether there was "evidence of any assumption of duty by the school district to provide supervision or protection to Wenger over and above that owed to the general population"(id., at 938).Thereafter, following completion of discovery, the school district again moved for summary judgment and Supreme Court denied the motion, prompting this appeal.

Initially, we note that Supreme Court was not precluded from determining the merits of the instant motion by reason of this Court's prior determination on the initial motion for summary judgment.Our previous determination did not constitute the law of the case(see, McIvor v Di Benedetto,121 AD2d 519, 522).Although it is well settled that successive motions for summary judgment based upon facts which could have been set forth from the outset are not encouraged, the school district premises its motion upon facts obtained from various discovery conducted after the denial of the initial motion (see, id.).Thus, we note additionally that, "[a]s an appellate court, we are not precluded from addressing the merits of the motion"(id., at 522).

Turning to the merits of the summary judgment motion, we note that plaintiff's claim that a special duty was created is premised upon two conversations that plaintiff alleges he had with the school district's representatives.Plaintiff asserts that these conversations were sufficient to establish the first element of special duty, namely "that the public entity, through promises or action, assumed an affirmative duty to act on behalf of the injured party"(220 AD2d 937, 938, supra;see, Cuffy v City of New York,69 NY2d 255).Specifically, plaintiff testified that, at the beginning of the 1990-1991 school year, he had a conversation with Louanne Prince,...