| Diana G. v Our Lady Queen of Martyrs Sch. |
| 2012 NY Slip Op 07270 [100 AD3d 592] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Diana G. et al., Appellants, v Our Lady Queen of MartyrsSchool et al., Respondents. |
—[*1] Murphy & Higgins, LLP, New Rochelle, N.Y. (David J. Rasmussen of counsel), forrespondents.
Motion by the appellants for leave to reargue an appeal from an order of the Supreme Court,Kings County, dated April 8, 2011, which was determined by decision and order of this Courtdated May 8, 2012, or, in the alternative, for leave to appeal to the Court of Appeals from thedecision and order of this Court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the branch of the motion which is for leave to reargue is granted, and the motionis otherwise denied; and it is further,
Ordered that, upon reargument, the decision and order of this Court dated May 8, 2012 (Diana G. v Our Lady Queen of MartyrsSchool, 95 AD3d 944 [2012]), is recalled and vacated, and the following decision andorder is substituted therefor:
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Bayne, J.), dated April 8, 2011, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The infant plaintiff, a first-grade student, allegedly was injured while playing tag duringrecess at her school. During the game, a third-grade student, who was not playing the game, raninto the infant plaintiff, knocking her to the ground and causing her to hit her head. The infantplaintiff, by her father, and her father individually, commenced this action to recover damages forthe infant plaintiff's injuries against the defendants, the alleged owners or operators of the school.
The Supreme Court properly granted the defendants' motion for summary [*2]judgment dismissing the complaint. Schools are under a duty toadequately supervise students in their charge, and they will be held liable for foreseeable injuriesproximately related to the absence of adequate supervision (see Mirand v City of NewYork, 84 NY2d 44, 49 [1994]; Staten v City of New York, 90 AD3d 893 [2011]; Capotosto v Roman Catholic Diocese ofRockville Ctr., 2 AD3d 384 [2003]). A school has a duty to exercise the same degree ofcare toward its students as would a reasonably prudent parent. However, a school is not aninsurer of its students' safety (seeRodriguez v Riverhead Cent. School Dist., 85 AD3d 1147 [2011]; Hernandez v Middle Country Cent. SchoolDist., 83 AD3d 781 [2011]; Paragas v Comsewogue Union Free School Dist., 65 AD3d 1111[2009]).
In determining whether the duty to provide adequate supervision has been breached in thecontext of injuries caused by the acts of fellow students, it must be established that schoolauthorities had sufficiently specific knowledge or notice of the dangerous conduct which causedinjury; that is, the third-party acts could reasonably have been anticipated (see Brandy B. v Eden Cent. SchoolDist., 15 NY3d 297, 302 [2010]; Mirand v City of New York, 84 NY2d at 49;Shannea M. v City of New York, 66AD3d 667 [2009]; Doe vDepartment of Educ. of City of N.Y., 54 AD3d 352 [2008]). 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; Janukajtis v Fallon, 284 AD2d 428 [2001];Johnsen v Carmel Cent. School Dist., 277 AD2d 354 [2000]; Convey v City of RyeSchool Dist., 271 AD2d 154 [2000]).
Here, the defendants established, prima facie, that they had no specific knowledge or noticeof any dangerous conduct of any kind on the part of the child who ran into the infant plaintiff.There was no proof of any prior conduct that would have put a reasonable person on notice toprotect the infant plaintiff against the injury-causing act. The act of the other child running andcolliding with the infant plaintiff was an impulsive, unanticipated act that could not reasonablyhave been anticipated. Therefore, any lack of supervision was not the proximate cause of theinjury (see Weiner v Jericho Union FreeSchool Dist., 89 AD3d 728 [2011]; Luciano v Our Lady of Sorrows School, 79 AD3d 705 [2010]; Odekirk v Bellmore-Merrick Cent. SchoolDist., 70 AD3d 910 [2010]; Janukajtis v Fallon, 284 AD2d 428 [2001]).
The plaintiffs failed to raise a triable issue of fact in opposition to the defendants' prima facieshowing.
The plaintiffs' contention regarding the alleged violation of a school policy against running atrecess is improperly raised for the first time on appeal.
The plaintiffs' remaining contention is without merit. Angiolillo, J.P., Dickerson, Hall andCohen, JJ., concur.