| Johnson v Ken-Ton Union Free School Dist. |
| 2008 NY Slip Op 01236 [48 AD3d 1276] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| Rosemary Johnson, as Parent and Natural Guardian of Antonio G.,an Infant, Appellant, v Ken-Ton Union Free School District, Respondent, et al.,Defendants. |
—[*1] Hurwitz & Fine, P.C., Buffalo (Mark A. Starosielec of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), enteredJanuary 12, 2007 in a personal injury action. The order granted the motion of defendant Ken-TonUnion Free School District for summary judgment dismissing the complaint against it.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the complaint against defendant Ken-Ton Union FreeSchool District is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by herson, a special education student who attended an elementary school in defendant Ken-Ton UnionFree School District (School District). Plaintiff alleged that her son was injured by anotherspecial education student, defendant Martin B., when plaintiff's son, Martin, and two otherspecial education students were allowed to use the bathroom together without supervision.Martin allegedly picked up plaintiff's son and dropped him on the floor, causing him to fracturehis tooth. The School District moved for summary judgment dismissing the complaint against iton the grounds that it had no notice of Martin's dangerous behavior and that the incident occurredwithin such a short time span that no amount of supervision could have prevented the incidentfrom occurring. Supreme Court erred in granting the motion.
"It is well settled that '[s]chools are under a duty to adequately supervise the students intheir charge and they will be held liable for foreseeable injuries proximately related to theabsence of adequate supervision' " (Shoemaker v Whitney Point Cent. School Dist., 299AD2d 719, 720 [2002], appeal dismissed 99 NY2d 610 [2003], quoting Mirand vCity of New York, 84 NY2d 44, 49 [1994]; see Doe v Board of Educ. of Morris Cent. School, 9 AD3d 588,589-590 [2004]). "Where, as here, the underlying injury is caused by the intentional act of afellow student, the 'plaintiff [must] demonstrate, by the school's prior knowledge or notice of thedangerous conduct which caused the injury, that the acts of the fellow student[ ] could havereasonably been anticipated' " (Board [*2]of Educ. of MorrisCent. School, 9 AD3d at 590). "The adequacy of the school's supervision and whether thealleged lack thereof was a proximate cause of the underlying injury generally are questions offact for a jury to resolve" (id.; see Shoemaker, 299 AD2d at 720; Vonungernv Morris Cent. School, 240 AD2d 926 [1997]).Here, the School District failed to meet its initial burden inasmuch as it failed toestablish that it did not have notice of Martin's dangerous behavior (see generally Mirand,84 NY2d at 49; Mayer v Mahopac Cent.School Dist., 29 AD3d 653, 654 [2006]). Indeed, in support of its motion, the SchoolDistrict submitted the deposition testimony of Martin in which he testified that he had picked upand "spun" plaintiff's son once before in the classroom and that both the teacher and teacher'saide were aware that he had done so. The School District also submitted the deposition testimonyof plaintiff's son in which he testified that Martin had lifted him up before and that he had told "ateacher" what had occurred.We further conclude that the School District failed to establish that its breach of theduty of supervision was not a proximate cause of the injuries sustained by plaintiff's son. "Wherean accident occurs in so short a span of time that even the most intense supervision could nothave prevented it, any lack of supervision is not the proximate cause of the injury and summaryjudgment in favor of the [school district] is warranted" (Mayer, 29 AD3d at 654). Here,however, the School District submitted the deposition testimony of plaintiff's son and Martin inwhich they testified that four children were in the bathroom for approximately four minutesbefore plaintiff's son was injured, during which time the children were playing, running, jumpingand making loud noises. Thus, the School District failed to meet its burden of establishing as amatter of law that the injury sustained by plaintiff's son took place within such a short time spanthat a greater degree of supervision would not have prevented it (cf. id. at 655).Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.