TAYLOR v. DUNKIRK CITY SCHOOL DISTRICT (2004)

 Plaintiff commenced this action to recover damages for injuries allegedly sustained by his daughter as the result of an assault by a fellow student in the school hallway after class.   Plaintiff asserted causes of action for negligent supervision against each defendant, along with a derivative cause of action.   Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint.  “Schools have a duty to provide supervision to ensure the safety of those students in their charge and are liable for foreseeable injuries proximately caused by the absence of adequate supervision” (Morman v. Ossining Union Free School Dist., 297 A.D.2d 788, 788, 747 N.Y.S.2d 586;  see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).   A person injured by a fellow student who seeks to impose liability for negligent supervision must establish that school personnel “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury” (Mirand, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).   Here, defendants met their initial burden by establishing that the classroom teacher did not have reason to anticipate that plaintiff's daughter would be attacked by the fellow student, and plaintiff failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Although the fellow student had behaved disruptively and defiantly toward the classroom teacher and may have been verbally aggressive toward plaintiff's daughter during class, that student had no history of physically aggressive behavior, nor did the student evince or threaten any such behavior in the classroom that day.   The classroom teacher, therefore, had no reason to anticipate the sudden hallway assault, “which came as a surprise even to [plaintiff's daughter] and [another] student witness [ ]” (Busby v. Ticonderoga Cent. School Dist., 258 A.D.2d 762, 764, 684 N.Y.S.2d 709, lv. denied 93 N.Y.2d 814, 697 N.Y.S.2d 561, 719 N.E.2d 922;  see Morman, 297 A.D.2d at 788-789, 747 N.Y.S.2d 586;  Kennedy v. Seaford Union Free School Dist. No. 6, 250 A.D.2d 574, 672 N.Y.S.2d 407;  see also Sanzo v. Solvay Union Free School Dist., 299 A.D.2d 878, 750 N.Y.S.2d 252).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: