Williams v. Student Bus Co.

• Decision Date: 20 March 2019
• Docket Number: 2017–10635,Index No. 35721/13
• Citation: Williams v. Student Bus Co., 170 A.D.3d 1085, 96 N.Y.S.3d 345 (N.Y. App. Div. 2019)
• Parties: Letricia WILLIAMS, etc., Appellant, v. STUDENT BUS COMPANY, INC., etc., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1085

96 N.Y.S.3d 345

Letricia WILLIAMS, etc., Appellant,

v.STUDENT BUS COMPANY, INC., etc., et al., Respondents, et al., Defendants.

2017–10635

Index No. 35721/13

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

Argued - December 13, 2018

March 20, 2019

The Post Law Firm, PLLC, Suffern, N.Y. (Craig A. Post of counsel), for appellant.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for respondentsStudent Bus Company, Inc., and Student Bus Co., LLC.

Barry, McTiernan & Moore, LLC(Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser ], of counsel), for respondentRockland Board of Cooperative Educational Services.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Rockland County(Robert M. Berliner, J.), dated September 29, 2017.The order granted that branch of the motion of the defendantRockland Board of Cooperative Educational Services which was for summary judgment dismissing the complaint insofar as asserted against it, and the separate motion of the defendantsStudent Bus Company, Inc., Student Bus Co., LLC, and East Ramapo Central School District for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendantsStudent Bus Company, Inc., Student Bus Co., LLC, and East Ramapo Central School District for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff payable by the defendantsStudent Bus Company, Inc., Student Bus Co., LLC, and East Ramapo Central School District, and one bill of costs to the defendantRockland Board of Cooperative Educational Services payable by the plaintiff.

On November 7, 2012, the plaintiff's son (hereinafter J.W.) was injured by a fellow student while onboard a bus on the way home from school.J.W. and his assailant attended the defendant Hilltop School, which was under the auspices of the defendantRockland Board of Cooperative Educational Services(hereinafter Rockland BOCES).When school districts within Rockland County could not meet the needs of their students, they referred the students to the Rockland BOCES.Rockland BOCES provided various alternative educational programs, including the Hilltop School.Each school district was responsible for providing bus services to transport its own students to and from the alternative educational settings provided by Rockland BOCES.Both J.W. and his assailant were from the defendantEast Ramapo Central School District(hereinafter the school district), which retained the defendantsStudent Bus Company, Inc., and Student Bus Co., LLC(hereinafter together the bus company defendants), to transport their students to and from the Hilltop School.

J. W.'s mother commenced this action against the bus company defendants, the school district, and Rockland BOCES, among others.Rockland BOCES moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, contending, inter alia, that it owed no duty of care to J.W.The bus company defendants and the school district separately moved for summary judgment dismissing the complaint insofar as asserted against them, contending that they did not breach their duty to supervise J.W.The Supreme Court granted both motions, and the plaintiff appeals.

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision"( Mirand v. City of New York,84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;seeBrandy B. v. Eden Cent. School Dist.,15 N.Y.3d 297, 302, 907 N.Y.S.2d 735, 934 N.E.2d 304;Nash v. Port Wash. Union Free School Dist.,83 AD3d 136, 146, 922 N.Y.S.2d 408 ).A school's duty to supervise the students in its charge arises from its physical custody over them (seeChainani v. Board of Educ. of City of N.Y.,87 N.Y.2d 370, 378, 639 N.Y.S.2d 971, 663 N.E.2d 283;Pratt v. Robinson,39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849;Begley v. City of New York,111 A.D.3d 5, 23, 972 N.Y.S.2d 48 ).

Rockland BOCES established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating that, at the time of the accident, J.W. was beyond its physical custody or orbit of authority and that it owed him no duty of care (see generallyBegley v. City of New York,111 A.D.3d at 23–28, 972 N.Y.S.2d 48;Ferraro v. North Babylon Union Free School Dist.,69 A.D.3d 559, 560, 892 N.Y.S.2d 507;Wisoff v. County of Westchester,296 A.D.2d 402, 402–403, 745 N.Y.S.2d 60;Womack v. Duvernay,229 A.D.2d 488, 489, 645 N.Y.S.2d 831 ).In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, we agree with the Supreme Court's determination to grant that branch of Rockland BOCES's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

However, the Supreme Court should have denied the motion of the bus company defendants and the school district for summary judgment dismissing the complaint insofar as asserted against them."Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision"( Mirand v. City of New York,84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;seeBrandy B. v. Eden Cent. School Dist.,15 N.Y.3d at 302, 907 N.Y.S.2d 735, 934 N.E.2d 304;Nash v. Port Wash. Union Free School Dist.,83 A.D.3d 136, 146, 922 N.Y.S.2d 408 )."The standard for determining whether a 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"( Palopoli v. Sewanhaka Cent. High Sch. Dist.,166 A.D.3d 639, 87 N.Y.S.3d 207;seeDavid v. County of Suffolk,1 N.Y.3d 525, 526, 775 N.Y.S.2d 229, 807 N.E.2d 278 ).Where, as here, negligent supervision in the context of injuries caused by an...