LISA JOHNSON INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF VALERION JOHNSON AN INFANT PLAINTIFF RESPONDENT v. ROCHESTER CITY SCHOOL DISTRICT DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

LISA A. JOHNSON, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF VALERION JOHNSON, AN INFANT, PLAINTIFF–RESPONDENT, v. ROCHESTER CITY SCHOOL DISTRICT, DEFENDANT–APPELLANT.

CA 12–00626

Decided: December 21, 2012

PRESENT:  SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ. CHARLES G. JOHNSON, ROCHESTER (CARA M. BRIGGS OF COUNSEL), FOR DEFENDANT–APPELLANT. CHRISTOPHER S. CIACCIO, ROCHESTER, FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiff commenced this action seeking damages for injuries sustained by her son when a fellow student assaulted him at a city transit bus stop across the street from their school building after school's dismissal.   Defendant moved for summary judgment dismissing the complaint on the grounds that it had no duty to supervise students off school premises after dismissal from school;  that the assault could not have been foreseen or prevented;  and that the level of supervision that it provided was not a proximate cause of the injuries to plaintiff's son.   We agree with defendant that Supreme Court erred in denying its motion.

The duty of a school district to its students “is strictly limited by time and space,” i.e., it “exists only so long as a student is in its care and custody during school hours, and terminates when the child has departed from the school's custody” (Norton v Canandaigua City School Dist., 208 A.D.2d 282, 285, lv denied 85 N.Y.2d 812, rearg. denied 86 N.Y.2d 839;  see Harker v Rochester City School Dist., 241 A.D.2d 937, 938, lv denied 90 N.Y.2d 811, rearg. denied 91 N.Y.2d 957).   Here, defendant established its entitlement to judgment as a matter of law with respect to the element of duty by demonstrating that plaintiff's son was safely dismissed from school grounds before the assault, which occurred beyond the boundaries of school property (see Bowers v. City of New York, 294 A.D.2d 526, 527, lv denied 98 N.Y.2d 613).   The evidence that plaintiff submitted in opposition to summary judgment was insufficient as a matter of law to raise a triable issue of fact on that element, i.e., whether plaintiff's son was within defendant's custody and control at the time of the assault such that it owed him a duty of adequate supervision.   Plaintiff's assertion that defendant knew or should have known of the assailant's alleged violent propensities before or on the day of the assault is therefore insufficient to raise the triable issue of fact necessary to defeat the motion (see Harker, 241 A.D.2d at 938).

Frances E. Cafarell

Clerk of the Court