MORMAN v. OSSINING UNION FREE SCHOOL DISTRICT

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

Delarenta MORMAN, etc., et al., Respondents, v. OSSINING UNION FREE SCHOOL DISTRICT, et al., Appellants.

Decided: September 30, 2002

DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY and DANIEL F. LUCIANO, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City, NY, (Christine Gasser of counsel), for appellants. Dominick J. Robustelli, White Plains, NY, (Alexander V. Sansone of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Westchester County (Cowhey, J.), entered January 3, 2002, which denied their motion for summary judgment dismissing the complaint.

ORDERED that order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The injured plaintiff, an eighth grader, was involved in an altercation with a fellow female student during an art class.   The injured plaintiff claimed that the fellow student instigated the fight and that her actions were undertaken in self-defense.   The plaintiffs subsequently commenced this action claiming that the defendants' alleged negligent supervision was the proximate cause of the injured plaintiff's injuries.   The defendants moved for summary judgment dismissing the complaint and the Supreme Court denied the motion.   We reverse.

 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 (see Mirand v. City of New York, 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Hernandez v. Christopher Robin Academy, 276 A.D.2d 592, 714 N.Y.S.2d 518;  Brown v. Board of Educ. of Glen Cove Pub. Schools, 267 A.D.2d 267, 700 N.Y.S.2d 58).  “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury;  that is, that the third-party acts could reasonably have been anticipated” (Mirand v. City of New York, supra at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  see Velez v. Freeport Union Free School Dist., 292 A.D.2d 595, 740 N.Y.S.2d 364;  O'Neal v. Archdioceses of N.Y., 286 A.D.2d 757, 730 N.Y.S.2d 524;  Hernandez v. Christopher Robin Academy, supra).   Injuries caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act (see Mirand v. City of New York, supra;  Velez v. Freeport Union Free School Dist., supra;  Janukajtis v. Fallon, 284 A.D.2d 428, 726 N.Y.S.2d 451).

 The defendants sustained their burden of establishing that they had no actual or constructive notice of any prior similar conduct by the student who allegedly attacked the injured plaintiff.   While the student had an extensive disciplinary record, the majority of the incidents involved insubordinate and disruptive behavior of a non-violent nature.   The only previous disciplinary action taken against the student for fighting occurred over eight months prior to the altercation with the injured plaintiff.   These prior incidents were insufficient to place the defendants on notice of the present situation (see Velez v. Freeport Union Free School Dist., supra;  Janukajtis v. Fallon, supra;  Brown v. Board of Educ. of Glen Cove Pub. Schools, supra;  Gibiser v. LaSalle Ctr., 258 A.D.2d 439, 685 N.Y.S.2d 98;  Kennedy v. Seaford Union Free School Dist. No. 6, 250 A.D.2d 574, 672 N.Y.S.2d 407).   Moreover, the only previous dispute between the girls was a verbal quarrel which occurred earlier on the day of the altercation, which the injured plaintiff did not report to school officials (see Danna v. Sewanhaka Cent. High School Dist., 242 A.D.2d 361, 662 N.Y.S.2d 71;  see also O'Neal v. Archdioceses of N.Y., supra;  Convey v. City of Rye School Dist., 271 A.D.2d 154, 710 N.Y.S.2d 641).   In opposition, the plaintiffs failed to raise a triable issue of fact in this regard (see e.g. Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

In view of the foregoing, the defendants' remaining contention need not be reached.

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