| Stephenson v City of New York |
| 2011 NY Slip Op 05178 [85 AD3d 523] |
| June 16, 2011 |
| Appellate Division, First Department |
| Jayvaun Stephenson et al., Respondents, v City of NewYork et al., Appellants. |
—[*1] Law Offices of Jonathan M. Cooper, Cedarhurst (Jonathan M. Cooper of counsel), forrespondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 11, 2009,which denied defendants' motion for summary judgment dismissing the complaint and grantedplaintiffs' cross motion for summary judgment on the issue of liability, reversed, on the law,without costs, defendants' motion granted and plaintiffs' denied. The Clerk is directed to enterjudgment dismissing the complaint.
The issue before us is whether defendants, who are deemed to have had prior notice of anassault on the almost 14-year-old plaintiff Jayvaun Stephenson, are liable for negligently failingto prevent the assault. On October 22, 2003, Stephenson, a student at Middle School 113 in theBronx, and Lorenzo McDonald, a fellow student, had a fistfight on the school grounds, duringwhich McDonald punched Stephenson once in the face and Stephenson punched McDonaldtwice. Neither boy was significantly injured. School authorities punished Stephenson with aone-day, in-school suspension, and McDonald, who was found to have started the incident,received a one- to two-week suspension. The school also dismissed Stephenson that day anddirected him to go straight home so that he would not encounter McDonald again that day. Uponarriving at home, Stephenson did not tell his mother or grandmother, with whom he lived, aboutthe fight with McDonald. The next day, October 23, Stephenson served his one-day suspensionand was still on school grounds when he encountered McDonald, who told Stephenson he was"going to get [Stephenson] jumped." Again, Stephenson did not tell his mother or grandmotherabout this threat; nor did he report it to school authorities.
Before school began on the morning of October 24, Stephenson exited a subway stationapproximately two blocks from the school and saw McDonald across the street. Stephensonentered a store, from which three accomplices of McDonald pulled Stephenson outside to thestreet where McDonald was waiting. While two accomplices held Stephenson's hands behind hisback, McDonald and the third accomplice repeatedly punched Stephenson in the face for severalminutes and fractured his jaw in two places.
Plaintiffs commenced this personal injury action in April 2004, alleging that the October[*2]24 assault was a continuation of the October 22 fistfight andthat defendants were negligent in failing to take action to prevent the assault by notifyingStephenson's mother about the fistfight. In an affidavit, the mother stated that, if the school hadnotified her about the fight, she would have asked to meet with the school and McDonald'sparents to iron out the differences between the two boys, and would have either kept Stephensonat home or had him escorted to school until "the problem had apparently been resolved."
After a series of discovery disputes between the parties, plaintiffs moved for an order strikingthe answer for defendants' repeated failure to comply with orders directing them to produceschool records about the October 22 incident. In a December 2008 order that was not appealed,the motion court granted plaintiffs' motion to the extent of sanctioning defendants by ruling that"the issue of prior notice to the defendants of the October 24, 2003 incident is resolved in[plaintiffs'] favor and defendants are precluded from raising any issue with respect thereto."
In the order on appeal, the motion court premised its grant of partial summary judgment toplaintiffs on its sanction in the December 2008 order. As the court viewed the matter, since itsprior ruling meant that "defendants were on notice of the previous [October 22] assault [and] thethreat to [Stephenson], as well as . . . [McDonald's] history of violence," the schoolwas on notice of the October 24 assault and, contrary to defendants' position, the assault wasforeseeable. The court acknowledged that a school normally has no duty of care to a studentinjured off school grounds (see e.g. Norton v Canandaigua City School Dist., 208 AD2d282, 285 [1995], lv denied 85 NY2d 812 [1995]), but found that, while Stephenson wasin the school's custody on October 22, the school breached its duty to notify his mother about thefistfight. By breaching this duty, the court concluded, the school "failed to prevent a furtherescalation of the incident" and accordingly was liable for Stephenson's injuries.
We find no liability on defendants' part, despite the motion court's sanction ruling. Contraryto the dissent's contention, the mother's claim that she could have prevented the assault is entirelyspeculative. McDonald could have attacked Stephenson at any time, possibly weeks later, or atany place, and the mother's presence would not necessarily have been a deterrent to what after allwas a targeted attack. The suggestion that McDonald's planned criminal assault upon Stephensonwould have been prevented by his mother's accompanying her almost 14-year-old son to schoolevery day does not rise above speculation. Nor does the notion that the attack would have beenprevented by the juvenile authorities if the mother had known of the fight seem any morerealistic. Fights among middle school students occur frequently, the school did not see a basis tocontact the juvenile authorities based on what happened on October 22, and it is not reasonableto believe that the juvenile authorities would have intervened. This seems particularly so wherethe school had already taken disciplinary action, including suspension, against the perpetrator.
Finally, we find it unreasonable to impose a duty on the school to notify a parent about afight between two students when the school has already affirmatively addressed the misconduct.In Matter of Kimberly S.M. v Bradford Cent. School (226 AD2d 85 [1996]), cited by thedissent, the Court found that a teacher who had been notified by a child of sexual abuse had nocommon-law duty to inform the parents because the abuse took place outside of school. Althoughhere the first fight occurred on school grounds, as in Kimberly, the risk of danger arosefrom potential conduct away from school by a third party, not from anything the school did orfailed to do. [*3]Similarly, in Anglero v New York City Bd. of Educ. (2 NY3d 784 [2004]), alsocited by the dissent, the duty imposed upon the school derived from its failure to stop an assaulton school premises that led to a further assault shortly afterward off school grounds. All the othercases cited by the dissent involve failure to act on the part of school officials with respect tostudents in the custody of the school. Concur—Friedman, DeGrasse and Freedman, JJ.
Saxe, J.P., and Abdus-Salaam, J., dissent in a memorandum by Saxe, J.P., as follows: Whena student assaults another student during school hours and on school property, and then assaultsthe same student again two days later off school grounds, the school may, in appropriatecircumstances, be liable for the victim's injuries arising from the second assault, if the secondincident was foreseeable and the school failed to take appropriate action to prevent it.
The majority finds, as a matter of law, that even if the school breached its duty, its conductwas not the proximate cause of the victim's injuries, because the other student's intentional actswere an intervening cause. I disagree, concluding that the evidence in the record establishes theexistence of triable questions of fact as to whether the school breached its duty and whether thatbreach was a proximate cause of the harm. I would therefore affirm the denial of defendants'motion for summary judgment, and reverse the grant of plaintiffs' cross motion for summaryjudgment on the issue of liability, leaving that issue for the finder of fact.
"Negligence arises from breach of duty and is relative to time, place and circumstance"(Sadowski v Long Is. R.R. Co., 292 NY 448, 455 [1944]). Courts determine the existenceand scope of duty (Donohue v Copiague Union Free School Dist., 64 AD2d 29, 33[1978]) with reference to "what is socially, culturally and economically acceptable" (Darby vCompagnie Natl. Air France, 96 NY2d 343, 347 [2001]). If duty exists, breach of dutyoccurs when an actor fails to do what a reasonable person would have done under the samecircumstances (Sadowski, 292 NY at 454). Negligent actors in breach of duty are liableonly if their negligence was a proximate cause of the harm, that is, if the breach of duty was asubstantial factor in bringing about foreseeable harm (Derdiarian v Felix Contr. Corp., 51NY2d 308, 315 [1980]). Schools have a duty of care towards students because they act in locoparentis; that is, they take the place of parents while students are in their custody, and thereforemust act with the same care "as a parent of ordinary prudence would observe in comparablecircumstances" (Hoose v Drumm, 281 NY 54, 57-58 [1939]; see Pratt vRobinson, 39 NY2d 554, 560 [1976]; Garcia v City of New York, 222 AD2d 192,194 [1996], lv denied 89 NY2d 808 [1997]).
A liability determination by the finder of fact will therefore be appropriate in the presentcontext if it is found, first, that the school, acting in loco parentis, breached its duty to thestudent, either by failing to inform his mother about the first incident or by failing to take otheravailable reasonable steps to discourage or prevent a further incident, and second, that the failureconstituted a proximate cause of the second assault. The proximate cause determination entailstwo separate findings: first, that the chain of causation leading from the breach actually led to theinjuries, and, second, that the second assault and resulting injuries were a foreseeableconsequence of the breach, rather than an intervening cause of plaintiff's injuries.
The record establishes the following: In 2003, plaintiff Jayvaun Stephenson, then a13-year-old eighth-grade student, attended Middle School 113 in the Bronx. At around noon on[*4]October 22, 2003, between fifth and sixth periods,Stephenson congregated with several friends in the school's first-floor hallway. LorenzoMcDonald, then a seventh-grade student, approached Stephenson from behind and stated that hewas going to take a black-and-white handkerchief out of Stephenson's back pocket. Stephensonreplied that he could wear whatever he wanted to wear. McDonald pulled Stephenson around andpunched him in the nose once. Stephenson reacted by punching McDonald once on each side ofhis face. Stephenson's friends then restrained Stephenson from further contact with McDonald,and Stephenson went to his next class.
Stephenson was taken to the assistant principal's office during sixth period. Afterdetermining that McDonald had initiated the fight, Assistant Principal Reed punished McDonaldwith several weeks of in-school suspension and Stephenson with one day of in-schoolsuspension; she dismissed Stephenson early and told him to go directly home, staggeringStephenson's and McDonald's dismissal times to ensure that no further confrontation between thetwo occurred outside of school. However, Reed never contacted Stephenson's mother, NadraSinclair, about the fight or the in-school suspension. Nor did Stephenson tell his mother about theincident.
The next day, October 23, 2003, Stephenson served his in-school suspension withoutincident. While he was leaving the school, he encountered McDonald, who allegedly threatenedto "get [him] jumped." The school was unaware of this threat, and Stephenson did not inform hismother of it.
The following morning, October 24, 2003, around 8:00 a.m., Stephenson exited the subwayat East 219th Street and saw McDonald on the other side of street. He went into a corner store topurchase breakfast, but three of McDonald's friends pulled him out of the store and brought himoutside to McDonald. Two of McDonald's friends held Stephenson's hands behind his back whileMcDonald and another friend punched Stephenson in the face for five to seven minutes. Theassault occurred two blocks from the school. Following the assault, the attackers let Stephensongo, and an unidentified person brought him to school. After an unsuccessful attempt to contactStephenson's mother, the school nurse called for an ambulance, which took him to JacobiHospital. The assault resulted in a broken mandible bone on both sides of Stephenson's face,which required surgery.
Plaintiffs served a summons and complaint dated April 8, 2004 against the City of New Yorkand the Department of Education, alleging that defendants negligently failed to take steps toprevent a continuation of the assault, in breach of their duty to protect the infant plaintiff whenthe school stood in loco parentis, resulting in the injuries he suffered on October 24, 2003.
For over four years defendants failed to comply with discovery orders, until finally, onOctober 30, 2008, they responded with affidavits proclaiming that a document search, which didnot take place until August 2008, failed to locate any of the demanded records, statements,witness information, or investigative documentation as to the October 22, 2003 incident, or anyrecords of the school's investigation into the October 24, 2003 incident. A preclusion orderresulted, preventing defendants from disputing that they had prior notice of the first assault, thethreat to Stephenson, and the assailant's history of violence.
Defendants moved for summary judgment, contending that as a matter of law: (1) withrespect to the October 24, 2003 incident, the school had no duty to supervise plaintiff beforeschool and off school premises; (2) Stephenson was not injured as a result of the October 22,2003 incident; and (3) the negligence (if any) of defendants was not a proximate cause of either[*5]incident. Plaintiffs cross-moved for summary judgment onthe issue of liability, arguing that the school acted negligently by failing to properly respond tothe initial assault, either by notifying the boys' parents or by taking steps to stem the reasonablyanticipated escalation of the assailant's violence. The motion court denied defendants' motion andgranted plaintiffs' cross motion, holding that "defendant breached a duty it had to plaintiff insidethe school, during school hours, by never notifying plaintiff's parent of the October 22ndincident." In addition, the court determined that "[s]ince the defendant was on notice. . . as a matter of law, it was foreseeable that the assailant would continue theassault and even escalate it." Defendants appeal from the denial of their motion for summaryjudgment and the grant of plaintiffs' cross motion.
There is no dispute that, as previously stated, schools owe a duty to provide adequatesupervision to students in their custody and are liable for foreseeable injuries proximatelyresulting from the absence of adequate supervision (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010],citing Mirand v City of New York, 84 NY2d 44, 49 [1994]), which duty is breached ifthe school, acting in loco parentis fails to act "as a parent of ordinary prudence would. . . in comparable circumstances" (Hoose, 281 NY at 58). Of course,"[s]chools are not insurers of safety" (Mirand, 84 NY2d at 49, citing Lawes v Boardof Educ. of City of N.Y., 16 NY2d 302, 306 [1965]), and cannot be held accountable forothers' acts when the students are outside their custody, that is, when the students are off schoolproperty during nonschool hours, including on the way to and from school. However, a schoolmay be liable for negligent supervision if a failure to comport with its duty, arising while astudent is in its custody, results in foreseeable injuries to the student while he or she is outside itscustody.
For example, in Anglero v NewYork City Bd. of Educ. (2 NY3d 784 [2004]), the Court of Appeals held that liabilitycould be found for an assault outside school custody when school employees witnessed andfailed to react to an assault upon the same victim earlier that day during school dismissal. TheCourt made clear that the school breached a duty to supervise if "intervention might have avertedthe second assault, which occurred off the school grounds" (id. at 785). Thus, the fact thatplaintiff sustained injuries while outside school custody is not dispositive, if the school couldhave prevented the second assault by fulfilling its duty to supervise when the plaintiff was in itscustody. The essence of plaintiffs' argument here is that defendants breached their duty tosupervise by failing to inform Stephenson's mother of the first assault or take appropriate steps toprevent any continuation or escalation. As in Anglero, a question of fact exists here as towhether the school failed to take appropriate steps while Stephenson was in its custody, whichfailure resulted in foreseeable danger of a future assault outside school.
A school's duty to supervise will support liability for an attack by a third party only if theschool has actual or constructive notice of the dangerous conduct that caused the plaintiff's injury(Mirand, 84 NY2d at 49). That notice is established here. Not only was the first fightbetween Stephenson and McDonald similar conduct that provided actual notice to the school,but, also, under the motion court's preclusion order defendants may not dispute their notice of theprior conduct. Under Mirand (84 NY2d at 50), once a school receives notice of anincident, it must take measures reasonably calculated to prevent further escalation of the incident.
I do not agree with plaintiffs' contention that 8 NYCRR 136.3 imposes on schools a legalobligation to inform parents about assaults on their children while in school custody. Thisprovision requires schools to inform parents about students' existing health conditions; it doesnot place an affirmative duty on them to inform parents about assaults at the hands of other [*6]students. Similarly, plaintiffs' reliance on Port WashingtonTeacher's Assn. v Board of Educ. of the Port Washington Union Free School Dist. (361 FSupp 2d 69 [ED NY 2005]) is misplaced; that case concerned notification of student pregnancy,which is clearly a "health condition."
However, the lack of a specific statutory duty requiring schools to inform parents about actsof violence against students does not preclude a common-law obligation. Schools' undisputedcommon-law duty, arising because they stand in loco parentis, already requires them to take suchaffirmative steps as a reasonably prudent parent under similar circumstances would take toprotect students in their care (Hoose, 281 NY at 58). When a school becomes aware offoreseeable danger while its charges are within its custody, the duty to supervise requires theschool "to take energetic steps to intervene" (Lawes, 16 NY2d at 305). When the schoolreceives notice that one of its students poses a danger to another student in its custody, the schoolmust take affirmative steps to prevent further escalation of that danger (Mirand, 84 NY2dat 50), and is liable for foreseeable injuries proximately related to its failure to interveneregardless of where the injuries occur (see Anglero, 2 NY3d at 785). Here, one possiblemeans of intervention was to inform the parents about the initial fight; others included speakingto the assailant or his parents in order to impress upon him the potentially serious consequencesof repeating or further escalating the violence, whether inside or outside of school.
Requiring schools to take affirmative steps to inform of foreseeable danger is notunprecedented. In Ferraro v Board of Educ. of City of N.Y. (32 Misc 2d 563 [1961],affd 14 AD2d 815 [1961]), a student with violent propensities attacked the infant plaintiffunder the supervision of a substitute teacher. The school principal knew of the student's violentpropensities, but had failed to inform the substitute teacher. The court held that a reasonable jurycould find that the principal's failure to inform the substitute teacher about the danger the studentposed constituted negligence in breach of the duty to supervise. The court reasoned that while"the assault itself cannot be the basis for liability of the defendant[,] [i]t is the failure of theprincipal to have alerted the substitute teacher, thereby depriving her of the opportunity of usingher own judgment, which I believe constitutes the act of negligence in this case" (id. at567). The court suggested that "[h]ad [the substitute teacher] been told, she would have been in aposition to decide whether anything further was required to be reasonably done to avoid thetrouble" (id. at 568). Similarly, in this case, the school is not liable for a failure to preventthe first fight or to supervise students on their way to school. However, a reasonable jury couldfind that the school acted negligently in its response to the initial altercation by, inter alia, failingto inform Stephenson's mother of the danger that McDonald presented to Stephenson outsideschool.
The present case is distinguishable from Matter of Kimberly S.M. v Bradford Cent.School (226 AD2d 85 [1996]), where the Court ruled that despite the teacher's statutory dutyto report suspected child abuse, the teacher had no common-law duty to inform parents whentheir child told the teacher that she had been sexually abused outside school. The Court reasonedthat "the reported acts of sexual abuse did not occur while [the child] was in the custody andcontrol of school officials and the threatened harm posed to her by continued acts of a third partydid not involve foreseeable conduct that could occur while the child was in the custody andcontrol of school officials" (id. at 88). That is, neither the initial harm nor the potentialfuture harm arose within the school's area of responsibility. In the matter now before us, theschool had a duty "to take energetic steps to intervene" (Lawes, 16 NY2d at 305),because the initial acts of violence against Stephenson occurred while he was in the school'scustody.[*7]
Other states have imposed on schools a common-lawduty to inform parents about foreseeable harm posed to children in the schools' care. Forexample, in Phyllis P. v Superior Court (183 Cal App 3d 1193, 228 Cal Rptr 776 [1986]),a school in California became aware that another student sexually assaulted the plaintiff'sdaughter a number of times while the students were in the school's custody, but the school chosenot to inform the plaintiff about the assaults. The student thereafter raped the plaintiff's daughteron school premises. Had the school warned her about the initial assaults, the plaintiff claimed,she could have prevented the subsequent rape. The court held that the school, acting in locoparentis, owed a duty to the child to supervise, and a duty to the parent to warn of the foreseeableharm. When parents entrust a school with their child, a "special relationship" between the parentand the school is created. As a result, the school has a duty to warn the parents of threats to theirchildren if the school has knowledge of " 'real and foreseeable' victims of the predictable tragedy"(183 Cal App 3d at 1196, 228 Cal Rptr at 777). The school's knowledge of the initial sexualassaults made the plaintiff's daughter the target of foreseeable harm; therefore, the school had aduty to warn the parent. Although, in California, the school owes a duty to warn to the parentrather than to the student, Phyllis P. is instructive on the question of when a duty toinform should arise. As in that case, the school here had knowledge that Stephenson had been thetarget of a particular type of harm at the hands of a specific individual, and reason to expectfurther such assaults in the future. Thus, it is reasonable to impose on the school a duty to informStephenson's mother about the risks of a future assault on her son.
The question of whether the school breached its duty to supervise in the present case must beaddressed by the trier of fact, rather than decided as a matter of law, since it depends on theparticular circumstances. The steps a reasonably prudent parent would take under similarcircumstances vary based upon the age and maturity of the child in question (see e.g. Garcia vCity of New York, 222 AD2d 192, 196 [1996], supra ["even the most prudent parentwill not guard his or her teen at every moment in the absence of some foreseeable danger ofwhich he or she has notice; but a five-year-old child in a public bathroom should besupervised"]). Since determining what constituted reasonable care is a fact-intensive inquiry,whether the school breached its duty to supervise by failing to inform plaintiff's parents or takeother appropriate steps is properly a question for the trier of fact (see Wilson v Vestal Cent. School Dist.,34 AD3d 999, 1000 [2006]). "The adequacy of a school's supervision of its students isgenerally a question left to the trier of fact to resolve" (id.).
The majority asserts that the cases imposing a duty only involve a failure to act while thestudent is in the custody of the school. I agree. However, while schools may not have a duty toprotect their students once those students are off the premises, the duty owed by a schoolwhile the plaintiff is still in its custody includes taking steps to prevent further attacksafter the student has left the premises (see Anglero, 2 NY3d at 785). It is the question ofwhether the actions taken by the school satisfied that obligation that must be addressed by a jury.In suggesting that it is unreasonable to impose a further duty on the school to notify a parentabout a fight "when the school has already affirmatively addressed the misconduct," the majorityfails to recognize that the school may not have addressed the misconduct adequately.
If it is determined that the school breached its duty to plaintiffs, a question of fact will remainas to whether that negligence was the proximate cause of the harm. While no causation may beestablished when, as a matter of law, by the manner in which they occurred, the injuries could nothave been prevented in any event (see Walsh v City School Dist. of Albany, 237 AD2d811 [1997]), it is not appropriate in these circumstances to hold, as a matter of law, thatthe [*8]second assault could not have been prevented. Certainly,McDonald could have launched his second attack at any time, or in any place. The issue here iswhether, if Stephenson's mother had been notified, she could have made arrangements toeffectively protect her son. She had a number of potentially viable options. She could haveaccompanied her son to and from school herself, or arranged for another adult to do so. She couldhave arranged for her son to be accompanied, in the weeks that followed, by others who wouldhave been able to call for help, or perhaps would have intervened in the three-on-one attack thatoccurred. She also could have sought the intervention of the juvenile authorities, who might haveemphasized to the assailant and, importantly, his parents or guardians, that any further incidentscould have serious legal repercussions. Indeed, even a mere threat by the mother to contact thejuvenile authorities, addressed to the attacker or perhaps to his family, could have prompted theattacker to squelch any plans for further attacks on Stephenson.
As this nonexhaustive list of options illustrates, the mother's claim that she would haveprevented the second assault if informed of the first is not merely speculative. Rather, a questionof fact is presented as to whether she could have arranged feasible means of preventing thesecond, more severe assault. The majority's backhanded dismissal of the precautionary steps thatStephenson's mother might have taken is indicative of an unnecessarily defeatist approach to theprotection of one's minor children, an option that parents of public school students should nothave to accept.
Nor can McDonald's second attack on Stephenson be deemed an intervening cause of hisinjuries, precluding liability as a matter of law due to its criminal, intentional nature. Although,as a matter of law, schools are not liable when a sudden, unforeseeable act of a third partycauses injury (see Ohman v Board of Educ. of City of N.Y., 300 NY 306, 309 [1949]),proximate cause becomes a question of fact when the third party act may be reasonably foreseen(see Bell v Board of Educ. of City of N.Y., 90 NY2d 944 [1997]). "When theintervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed,the defendant who fails to guard against such conduct will not be relieved of liability when thatact occurs" (Kush v City of Buffalo, 59 NY2d 26, 33 [1983]). A defendant may be liableif "a reasonably prudent person in the defendant's situation, before the [third party's act], wouldhave foreseen that an act of the kind committed by [the third party] would be a probable result ofthe defendant's negligence" (PJI 2:72). Since the school had notice of McDonald's first assault onStephenson, a reasonable jury could find that his second assault was reasonably foreseeable fromthe school's perspective.
"[T]he plaintiff need not establish that the precise manner in which the accident occurred wasforeseeable. Rather, it is sufficient that she demonstrate that the risk of some injury from thedefendant's conduct was foreseeable" (Boderick v R.Y. Mgt. Co., Inc., 71 AD3d 144, 148 [2009] [citationomitted]). A question of fact exists as to whether it was foreseeable that Stephenson wouldsustain injuries because of the school's failure to take appropriate measures after the initialaltercation.
In view of the questions of fact presented as to whether the school's failure to informStephenson's mother or take other steps to prevent further incidents was a breach of its duty toplaintiffs, and whether that failure was a proximate cause of the harm, both parties' motions forsummary judgment should have been denied, and the case should proceed to trial.