DICKERSON v. CITY OF NEW YORK (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated November 6, 1997, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this negligence action against the defendants after he was shot in the hallway of his high school by an intruder.   The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint finding that there was no special relationship between the defendants and the plaintiff which give rise to a special duty to provide police protection.   The Supreme Court also found that the incident was not a foreseeable consequence of allegedly inadequate supervision.   We affirm.

 “It is well-settled that a school's provision of security against physical attacks by third parties-who are not students of the school who foreseeably pose a threat to other students-‘is a governmental function involving policy-making regarding the nature of the risks presented, and that no liability arises from the performance of such a function absent a special duty of protection’ ” (Edwards v. City of Mount Vernon, 230 A.D.2d 821, 646 N.Y.S.2d 556;  quoting Bonner v. City of New York, 73 N.Y.2d 930, 932, 539 N.Y.S.2d 728, 536 N.E.2d 1147;  see, Krakower v. City of New York, 217 A.D.2d 441, 629 N.Y.S.2d 435;  Salmond v. Board of Educ. of City of N.Y., 131 A.D.2d 829, 830, 517 N.Y.S.2d 90).   In order to establish a special duty of protection, a claimant must show “(1) an assumption by the municipality, through promises or actions, of affirmative duty to act on behalf of the party who was injured;  (2) knowledge on the part of the municipality's agents that inaction could lead to harm;  (3) some form of direct contact between the municipality's agents and the injured party;  and (4) that party's justifiable reliance on the municipality's affirmative undertaking” (Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937).

 The defendants met their burden of establishing that no special duty of protection existed since it is clear from the record that they made no affirmative promise of protection to the plaintiff (see, Bloom v. City of New York, 123 A.D.2d 594, 507 N.Y.S.2d 13).   The mere implementation of security measures at a high school does not give rise to such a duty (see, Logan v. City of New York, 148 A.D.2d 167, 170, 543 N.Y.S.2d 661;  Glick v. City of New York, 53 A.D.2d 528, 384 N.Y.S.2d 184, affd. 42 N.Y.2d 831, 397 N.Y.S.2d 382, 366 N.E.2d 83).

 The plaintiff's cause of action to recover damages based on negligent supervision was also properly dismissed.   The plaintiff failed to submit any evidence to create an issue of fact as to whether his dismissal from class five minutes early proximately caused his injuries (see, Mirand v. City of New York, 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Lawes v. Board of Educ., 16 N.Y.2d 302, 266 N.Y.S.2d 364, 213 N.E.2d 667;  Decker v. Dundee Cent. School Dist., 4 N.Y.2d 462, 176 N.Y.S.2d 307, 151 N.E.2d 866;  Danna v. Sewanhaka Cent. High School Dist., 242 A.D.2d 361, 662 N.Y.S.2d 71;  Garcia v. City of New York, 222 A.D.2d 192, 646 N.Y.S.2d 508;  Kosok v. Young Men's Christian Assn. of Greater N.Y., 24 A.D.2d 113, 264 N.Y.S.2d 123, affd. 19 N.Y.2d 935, 281 N.Y.S.2d 341, 228 N.E.2d 398).

MEMORANDUM BY THE COURT.