| Khosrova v Hampton Bays Union Free Sch. Dist. |
| 2012 NY Slip Op 06583 [99 AD3d 669] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Jesse Khosrova, an Infant, by His Mother and Natural Guardian,Sharon Khosrova, et al., Appellants, v Hampton Bays Union Free School District,Respondent. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby and Diane K. Farrell ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Pitts, J.), dated June 21, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
In June 2004 the plaintiff Jesse Khosrova (hereinafter injured plaintiff), who was then aseventh-grade student, allegedly sustained personal injuries when he was assaulted by a fellowstudent while waiting for a school bus just outside his school. The school provided a late bus forstudents who stayed at the school for after-school activities. The injured plaintiff asserted that hisassailant struck him more than once, and that the entire incident spanned a period of severalminutes. There was no adult present during the incident. While there was no evidence of priorsimilar conflict between the injured plaintiff and the assailant, the assailant's lengthy disciplinaryrecord showed that, prior to the incident, he had exhibited violent tendencies and assaulted otherstudents and an assistant principal. The injured plaintiff, by his mother, and his mother suingderivatively, commenced this action against the Hampton Bays Union Free School District,alleging, inter alia, that the defendant breached a duty to provide adequate supervision,proximately causing the injured plaintiff's injuries.
The defendant moved for summary judgment dismissing the complaint, contending that itadequately supervised the injured plaintiff and that, in any event, its alleged negligence was not aproximate cause of the injured plaintiff's injuries. In the order appealed from, the Supreme Courtgranted the motion. We reverse.
Schools are under a duty to adequately supervise children in their charge, and they will beheld liable for foreseeable injuries proximately related to the absence of adequate supervision(see Mirand v City of New York, 84 NY2d 44, 49 [1994]). A school is obligated toexercise such care over [*2]students in its charge that a parent ofordinary prudence would exercise under comparable circumstances (see id.; Ohman vBoard of Educ. of City of N.Y., 300 NY 306 [1949]; Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 146[2011]; Jennings v Oceanside Union Free School Dist., 279 AD2d 507, 508 [2001]). Indetermining that the duty to provide adequate supervision has been breached in the context ofinjuries caused by the acts of fellow students, it must be established that school authorities hadsufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is,the third-party acts could reasonably have been anticipated (see Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302[2010]; Mirand v City of New York, 84 NY2d at 49; Jake F. v Plainview-Old Bethpage Cent. School Dist., 94 AD3d804, 805 [2012]; Buchholz vPatchogue-Medford School Dist., 88 AD3d 843, 844 [2011]). Actual or constructivenotice to the school of prior similar conduct is generally required, because school personnelcannot reasonably be expected to guard against all of the sudden, spontaneous acts that take placeamong students daily. An injury caused by the impulsive, unanticipated act of a fellow studentordinarily will not give rise to a finding of negligence absent proof of prior conduct that wouldhave put a reasonable person on notice to protect against the injury-causing act (see Mirand vCity of New York, 84 NY2d at 49; Buchholz v Patchogue-Medford School Dist., 88AD3d at 844; Whitfield v Board ofEduc. of City of Mount Vernon, 14 AD3d 552 [2005]).
Here, the defendant failed to make a prima facie showing of entitlement to judgment as amatter of law dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). In support of its motion, the defendant submitted, inter alia, the deposition testimony ofits superintendent, who testified that she did not recall whether, prior to the incident, there wereany fights or disciplinary problems that occurred at the pick-up area. Thus, the defendant failed tosustain its burden of establishing that it had no actual or constructive notice of prior conductsimilar to the subject incident (cf. KeithS. v East Islip Union Free School Dist., 96 AD3d 927, 928 [2012]). To the extent thatthe defendant contends that it did not owe a duty of adequate supervision to the injured plaintiffbecause the incident occurred outside the school building and after normal school hours, thatcontention is without merit. The evidence submitted by the defendant demonstrates that theincident occurred on school grounds, while the injured plaintiff and 10 to 15 other students wereawaiting the late school bus. The duty that the defendant owed to the injured plaintiff "derivesfrom the simple fact that a school, in assuming physical custody and control over its students,effectively takes the place of parents and guardians" (Mirand v City of New York, 84NY2d at 49; see Nash v Port Wash. Union Free School Dist., 83 AD3d at 147; Reed vPawling Cent. School Dist., 245 AD2d 281, 281-282 [1997]). Under the circumstancespresented here, the mere fact that the accident occurred following the formal end of classes forthe day is without legal significance (see Nash v Port Wash. Union Free School Dist., 83AD3d at 148). Contrary to the defendant's contention, the evidence submitted in support of itsmotion did not show, as a matter of law, that the injured plaintiff was a voluntary participant inthe incident (see McLeod v City of NewYork, 32 AD3d 907 [2006]).
The defendant's remaining contentions are without merit. Since the defendant failed toestablish its entitlement to judgment as a matter of law, we need not review the sufficiency of theplaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Accordingly, the Supreme Court should have denied the defendant's motion forsummary judgment dismissing the complaint. Dillon, J.P., Leventhal, Austin and Roman, JJ.,concur.