| Shannea M. v City of New York |
| 2009 NY Slip Op 07245 [66 AD3d 667] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Shannea M., Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Dona B.Morris of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from ajudgment of the Supreme Court, Kings County, dated September 10, 2007, which, upon a juryverdict on the issue of liability finding that the defendant was not negligent, is in favor of thedefendant and against her dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The complaint alleges that the plaintiff, a special education student at a public middle schooloperated by the defendant City of New York, was raped in a bathroom at the school, and that theCity was negligent in failing to provide adequate supervision. At trial, over the plaintiff'sobjection, the court instructed the jury that it could not find that the City was negligent unless theCity had "actual or constructive notice of prior assaults in school bathrooms," and that"constructive [notice] means the City of New York, in the use of reasonable care, should haveknown that prior assaults in school bathrooms occur, although, in fact, it had no knowledge ofit." The plaintiff argues that, under the circumstances of this case, no notice was required andthat the jury charge was erroneous.
Schools are not insurers of their students' safety, but they are under an obligation to exercisesuch care "as a parent of ordinary prudence would observe in comparable circumstances"(Mirand v City of New York, 84 NY2d 44, 49 [1994], quoting Hoose v Drumm,281 NY 54, 57-58 [1939]). Generally, "[i]n determining whether the duty to provide adequatesupervision has been breached in the context of injuries caused by the acts of fellow students, itmust be established that school authorities had sufficiently specific knowledge or notice of thedangerous conduct which caused injury; that is, that the third-party acts could reasonably havebeen anticipated" (Mirand v City of New York, 84 NY2d at 49).
Here, the charge as delivered, even if erroneous, did not prejudice the plaintiff inasmuch as itwas so general as to require merely that the City knew or should have known that assaultsoccurred in school bathrooms in general. Indeed, in this respect, an expert witness for theplaintiff offered undisputed testimony that middle school bathrooms were "notorious" forincidents, including fights, and that many [*2]students avoidedthem. Moreover, the charge on notice did not relate to the central issue at trial, which waswhether the incident had even occurred. Fisher, J.P., Covello, Angiolillo and Leventhal, JJ.,concur.