Other Cases - Positive Results

Jose Gomez v. Our Lady of Fatima Church (117 A.D.3d 987 N.Y.A.D. 2 Dept., 2014.)

This claim involved a four-year old child, a student of Our lady of Fatima School, who fell on Our Lady of Fatima’s playground, on what was described as green indoor/outdoor carpeting installed by the school’s maintenance personnel. The carpeting was not glued to the playground surface. Two teachers and two assistant teachers were present when the child tripped and fell. Apparently, following the fall, the child was not taken to the school’s registered nurse for an examination, nor were the child’s parents contacted, as the toddler made no complaints when he was in school on the day of the fall. The child returned to school three days later with a cast on his left wrist.

We were successful on our Motion for Summary Judgment on Liability, which was granted by Judge Janice Taylor’s Decision and Order, dated September 11, 2012. The plaintiff appealed the order to the Appellate Division, Second Department, which held in our favor on May 28, 2014, sustaining the dismissal of the case. The Appellate order, a copy of which is attached, indicated: “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). Even if there is a triable issue of fact as to the adequacy of supervision, “ ‘liability for any such negligent supervision does not lie absent a showing that it constitutes a proximate cause of the injury sustained’ ” ( Mayer v. Mahopac Cent. School Dist., 29 A.D.3d 653, 654, 815 N.Y.S.2d 189, quoting Lopez v. Freeport Union Free School Dist., 288 A.D.2d 355, 356, 734 N.Y.S.2d 97; see Siegell v. Herricks Union Free School Dist., 7 A.D.3d 607, 608–609, 777 N.Y.S.2d 148; Schlecker v. Connetquot Cent. School Dist. of Islip, 150 A.D.2d 548, 541 N.Y.S.2d 127). “[W]here ... an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not [a] proximate cause of the injury” ( Soldano v. Bayport–Blue Point Union Free School Dist., 29 A.D.3d 891, 891, 815 N.Y.S.2d 712 [internal quotation marks omitted]; see Walker v. Commack School Dist., 31 A.D.3d 752, 820 N.Y.S.2d 287; Mayer v. Mahopac Cent. School Dist., 29 A.D.3d 653, 815 N.Y.S.2d 189).

[Here, the defendant met its prima facie burden of demonstrating that the alleged inadequate supervision was not a proximate cause of the injuries sustained by the injured plaintiff. In opposition, the plaintiffs failed to raise a triable issue of fact as to causation ( see Scarito v. St. Joseph Hill Academy, 62 A.D.3d 773, 775, 878 N.Y.S.2d 460; see also Odekirk v. Bellmore–Merrick Cent. School Dist., 70 A.D.3d 910, 911, 895 N.Y.S.2d 184).

Che Clarke v. Roman Catholic Diocese of Brooklyn,  and St. John Cantius School, Kings County Supreme Court Index No: 11593/10

The plaintiff alleges a series of assaults by fellow students while he was in the fourth grade at St. John Cantius School in or around the year 2000.  The Bill of Particulars submitted by the plaintiff indicated that the plaintiff was assaulted by a fellow classmate, defendant, Michael Butler.  It was further alleged that officials at St. John Cantius School were aware that the plaintiff suffered from hemophilia. The plaintiff alleged that he was repeatedly harassed by Michael Butler and further that he was “jumped on by Mr. Butler in the classrooms and lunchroom while attending St. John Cantius School.”  
With respect to the issue of liability, the law in New York is settled that a school has a duty to adequately supervise their students and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision, Miranda v. The City of New York, 84 N.Y.2d 44 (1994). Schools are not, however, insurers of the safety of the students and cannot reasonably be expected to continuously supervise and control all movements and activities of students.  Therefore, New York law holds that schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.  When a breach of the duty of supervision is established, the next inquiry must determine whether the negligence was the proximate cause of the injuries sustained.  As the Court of Appeals set forth in Miranda (supra), “In some cases, the wrongful conduct of a fellow pupil may be considered extraordinary and intervening, thus breaking the causal nexus between a defendant’s negligent act or omission and a plaintiff’s injury.  The test to be applied is whether under all the circumstances the chain of events that follow the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence.”

Unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school’s liability and negligence absent actual or constructive notice of prior similar conduct, Brandy B. v. Eden Central School District, 15 N.Y.3d 297 (2010).  It must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury and the acts of the third-party student could have reasonably been anticipated.  We are entitled to summary judgment dismissing this case if we are able to establish a prima facie entitlement of judgment as a matter of law tendering sufficient evidence to demonstrate the absence of any material issues of fact.

In Capotosto v. The Roman Catholic Diocese of Rockville Centre, the Appellate Division Second Department affirmed a dismissal of a lawsuit filed against the Diocese of Rockville Centre based on injuries sustained by a third grade student while she was at St. Patrick’s School in Huntington.  The Appellate Division indicated the accident was caused by a spontaneous and unforeseeable act committed by a fellow student, and under the circumstances, no amount of supervision would have succeeded in preventing the accident.  The plaintiffs in Capotosto failed to meet their burden of proving inadequate supervision was a proximate cause of the injury.  The plaintiff has the burden of proof to show that the school’s negligence in supervising the students was a proximate cause of the injuries involved.  We argued that plaintiff’s complaint and his deposition testimony fail to set forth a prima facie case.  The Order of Judge David Vaughn of Supreme Court, Kings County, dated June 25, 2014 granted our application for summary judgment dismissing the plaintiff’s complaint.

Diana Guijarro v. Our Lady Queen of Martyrs School

The matter was defended by the law firm of Murphy & Higgins, LLP. Two students collided while running in school yard during recess. Plaintiff sustained a head injury with subdural hematoma, requiring surgical evacuation. Plaintiff alleged cognitive decline and brain injury and demanded settlement of $2.5 million. The Appellate Division ruled that the school had no notice of any behavior on the part of the other student involved in the collision that would have mandated a higher level of supervision, and that the accident was sudden, spontaneous, and unforseeable such that no reasonable level of supervision would have prevented it.

Morrison v. Christ the King Regional High School

The matter was defended by the Law Firm of Conway, Farrell, Curtin & Kelly, P.C. The plaintiff, a student at Christ the King Regional High School, alleged that while attending a dance sponsored by Christ the King Student Council he was assaulted and stabbed outside the school building while on school property. Prior to the assault, the perpetrators, who were guests at the party and not students at Christ the King, were escorted out of the dance by teachers because of their disruptive behavior towards the plaintiff. At the conclusion of discovery, a motion for summary judgment was filed. It was argued that the plaintiff could not meet the burden of establishing his claims of inadequate supervision because school authorities did not have sufficient specific knowledge or notice of the dangerous conduct which caused the injury. In sum, the Court held that the perpetrator who exhibited aggression, prior to being escorted from the dance, was not the perpetrator that subsequently stabbed the plaintiff. There was no indication that the defendant should have been aware of the perpetrator’s propensity for violence. It further held that the events were sudden and unanticipated events which no level of supervision could have prevented.

Lopez v. Blessed Sacrament School

This case was a favorable result by the law firm of Pisciano and Scahill against Insurance Company XYZ. The lawsuit arose following an altercation which occurred in the school bathroom at Blessed Sacrament School where the plaintiff, Carlos Lopez, was kicked in the knee by another student, Christian Portilla. Our investigation revealed the Plaintiff was a sixth grade student in Blessed Sacrament School and was in the Boys’ bathroom with three other boys when the incident occurred. The teacher, Rachel Dalton, indicated the four students went to the bathroom at 11:30 a.m. and one of the students told her that the boys were horsing around and Carlos Lopez hurt his knee. A fellow student, Christian Portilla, later admitted that he kicked the plaintiff and he received a one-day suspension.

The theory of liability against Blessed Sacrament School was based on the failure to properly supervise the students. Liability may arise for personal injuries to a student due to the misconduct of a fellow student where a school official or teacher was negligent in directing or permitting a pupil to embark on a course of conduct which might reasonably be foreseen to result in injuries to another student. Bauer v. Board of Ed. of City of New York, 285 A.D. 1148, 140 N.Y.S.2d 167 (1955); Ferraro v. Board of Ed. of City of New York, 32 Misc. 2d 563, 212 N.Y.S.2d 615 (App. Term 1961), order aff'd, 14 A.D.2d 815, 221 N.Y.S.2d 279 (2d Dep't 1961). Where an act of a fellow student was not foreseeable or there was no opportunity to intervene, there is generally no liability on the part of the school authorities. If, however, the occurrence could reasonably have been anticipated, as where the school is aware of the danger and acts contrary to established rules, liability may be found. In this proceeding we prevailed on a motion for summary judgment predicated on the defense as the conduct of the School and teacher was not unreasonable nor was the conduct of the student foreseeable. A copy of the dismissal may be downloaded here: Dismissal Order.