Matter of Doe v Board of Educ. of Penfield School Dist.

[*1] Matter of Doe v Board of Educ. of Penfield School Dist. 2006 NY Slip Op 51615(U) [12 Misc 3d 1197(A)] Decided on February 10, 2006 Supreme Court, Monroe County Polito, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 10, 2006
Supreme Court, Monroe County

In the Matter of the Claim of Jane Doe, Plaintiffs,

against

Board of Education of Penfield School District, and the Penfield Central School District by and through its operation of Penfield High School and The Town of Penfield, Defendants.



04/6902



THE BULLARD LAW GROUP

H. TODD BULLARD, ESQ., of Counsel

Attorneys for Plaintiffs

Office and P.O. Address

30 West Broad Street, Suite 200

Rochester, NY 14614

OSBORN, REED & BURKE, LLP

AIMEE LaFEVER KOCH, ESQ., of Counsel

Attorneys for Defendant Penfield Central School District

Office and P.O. Address 1 Exchange Street

Rochester, NY 14614

William P. Polito, J.

This action was commenced on the basis of negligent supervision against the Penfield Board of Education and the Town of Penfield for injuries sustained by a 15 year old student as a result of a sexual assault perpetrated by a 17 year old fellow student on April 21, 2003. The action against the Town of Penfield was dismissed with prejudice by order of Judge Robert J. Lunn dated 12/14/2004.

Relief Requested:

Defendants move for summary judgment dismissing plaintiff's complaint in its entirety.

Plaintiff opposes dismissal of her complaint.

Decision:

Defendant's motion is granted in part, as set forth below. The dismissal of cause of action for negligent supervision is denied.

Facts:

The Court taking the facts in a light most favorable to the non-moving plaintiff finds as follows:

The plaintiff, Jane Doe (Doe), a 15 year old 10th grade female student at Penfield High School encountered the third party defendant, Josue S., a 17 year old 11th grade student, and an acquaintance, on April 21, 2003 in the school hall at the [*2]conclusion of school classes. At his request, she accompanied him through several hallways of the school to a secluded and prohibited place in back of the stage area of the auditorium, where she was sexually molested. She did not anticipate the assault.

The case was submitted to the Grand Jury and no billed.

The plaintiff contends the school was negligent in failing to properly place a person to supervise and monitor the hall-auditorium entrance so as to prevent the students from entering; that the school had actual or constructive knowledge of the third-party defendant's propensities based upon his continued academic failures, truancy, tardiness, and refusal to respond to the school's remedial attempts, coupled with his openly sexually harassing conduct upon other female students creating a foreseeable danger of a sexual assault which should have been prevented by removing him from the school, and/or preventing him from being in the halls at the time of the assault.

The defendant seeks dismissal as a matter of law as follows:

1. That the evidence is insufficient to sustain a cause of action based on negligent security, or to create a special duty owed to plaintiff.

2. That the evidence exclusive of the lack of security considerations or allegations is insufficient to sustain a cause of action based on negligent supervision since:

(A) The defendant has affirmatively shown it has met its duty of general supervision as a matter of law by having an adequate supervision plan in place at the school.

(B) The sexual assault was not foreseeable since the perpetrator's prior conduct was only academic failures, tardiness, truancy, and resistence to efforts to remedy the same without any history of violence or sexual assaults.

(C) The alleged lack of supervision was not a proximate cause of the sexual assault.

3. That the infant cannot collect damages for her parents' emotional distress.

In regards to items (1) and (3) above: [*3]

Negligent Security Cause of Action

The defendant seeks to dismiss a cause of action based upon inadequate security. While the pleadings are in artfully drawn and confusing on this aspect, a determination is not necessary since the plaintiff has not asserted such a cause of action in the complaint, and the attorney at oral argument conceded plaintiff has no such cause of action, and does not seek recovery upon such theory. Nor does the plaintiff's allegation of defendant's lack of supervision of third party defendant's truancy, even if true, create a cause of action for which the plaintiff can charge a breach. The school has no duty to provide police protection absent a special duty. (Logan v. City of NY, 148 AD2d 167, 169, (1st Dept., 1989)). The allegations of truancy and resistance to correction, including hall prowling are not legally sufficient to create a special and foreseeable duty to protect the plaintiff from Josue's sexual assault.

Damages for parents emotional injuries

The defendant seeks dismissal of the parent's claim for emotional injuries. Again, although in artfully drawn, the parents are not parties to this action, and have not asserted a direct and/or derivative cause of action in the complaint. Although there is the word "derivative" used in the Bill of Particulars, they are only parties in a representative capacity on behalf of the plaintiff, who is the sole party to this action. The plaintiff infant has reached 18 years of age and is now the sole plaintiff on her own behalf. Accordingly, the parents' emotional distress resulting from the negligent supervision of their infant plaintiff daughter is not a compensable element of damages recoverable by the daughter. (Cavello v. Sherburne-Earlville Central School District, 110 AD2d 253, 255, (3rd Dept., 1985)).

Even if the parties asserted a direct or derivative cause of action, that element of damages is not recoverable in New York. (See Zea v. Kolb, 204 AD2d 1019, (4th Dept., 1994)). Accordingly, dismissal of such element of damages is granted. However, medical expenses incurred by the plaintiff infant are recoverable in her action.

Negligent Supervision Action

Applicable Law - Duty of School [*4]

The school's standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances. (NY PJI 2:227).

"The standard for determining whether a school was negligent in executing its supervisory responsibility is, (w)hether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision. (Italic omitted)". (Mirand v. City of New York, 190 AD2d 282, aff'd 84 NY2d 44, (1994)).

That duty includes the protection of its students from the assaultive conduct of fellow students:

While not insurers of the safety of students, schools are

"under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision"

(Mirand v. City of New York, 84 NY2d 44, 49). Where injuries are caused by the intentional acts of fellow students, imposition of liability upon the school under a theory of

negligent supervision is justified when a plaintiff can show,

usually by virtue of the school's prior knowledge or notice

of the dangerous conduct which caused the injury, that the

acts of the fellow student could reasonably have been

anticipated (Id.). On the other hand, "school personnel

cannot reasonably be expected to guard against ... an injury caused by the impulsive, unanticipated act of a fellow student". (citations omitted, Schrader v. Board of Education of the

Taconic Hills Central School District, 249 AD2d 741, 742-743,

(3rd Dept., 1998))."

That duty extends to protecting younger students against the unintended consequences of their own acts. "(T)he effective cause of plaintiff's injuries was a failure [by the teachers] to protect the boys against themselves." (Cavello, supra at 255, referring to Hoose v. Drew, 281 NY 54, 58, (1939)).

But does not extend to intended consequences of older students for their own voluntary acts, eg., injuries from voluntary fighting, when plaintiff is of an age capable of "understand(ing) and evaluat(ing) the consequences of his own and the [*5]defendant's conduct and voluntarily chose to expose himself to the dangers ... ." (Ruggiero v. Board of Education of City of Jamestown, 31 AD2d 884, (4th Dept., 1969); Jones v. Kent 35 AD2d 622, (3rd Dept., 1970) - 14 year old boys).

A school may not be liable for damages where older minors, who are capable of understanding and appreciating their conduct, intentionally avoid detection to go to a prohibited and secluded portion of the school building and engage in consensual sex. The Penal Code Sec. 130.05 precluding sexual consent by children under 17 years of age may not be applicable in a civil suit. (O'Connor v. Western Freight Assoc., 202 FSupp 561, 565, (S.D., NY, 1962); Roe v. Barad, 230 AD2d 839, 840, (2nd Dept., 1996); Aadland v. Flynn, 27 M2d 833, 836-837, (Sup. Ct., NY County, 1961) aff'd 14 AD2d 837; cf Colon v. Jarvis, 292 AD2d 559, (2nd Dept., 2992), dissent).

Security vs. Supervision

In support of its motion for summary judgment, the defendant first seeks to bifurcate from the negligent supervision cause of action those allegations of negligent conduct which relate to inadequate police or security guard protection. Defendant then proceeds to analyze the remaining assertions, particularly Josue's past conduct, as being inadequate to support the remaining cause of action for negligent supervision.

Defendant's requested dichotomy of the security elements is misplaced. Those security elements, while not rising to a level sufficient to constitute a cause of action for negligent security or special duty, may, nevertheless, still be considered in evaluating the negligent supervision cause of action.

In Logan, after dismissing the negligent security cause of action, the Appellate Court stated "... these factors [deployment of inadequate security guards and unmonitored areas] are relevant in assessing plaintiff's claim of liability based upon negligent supervision." (Logan v. City of New York, 148 AD2d 167, 170, (1st Dept., 1989)).

Application of Law to the Facts on Negligent Supervision [*6]

The defendant maintains that it had fulfilled its duty of supervision as a matter of law by enacting and implementing a school plan which provided for 12 hall monitors throughout the day in key places in the school, including post 2 - the subject hall-auditorium entrance area.

The post 2 Cluster A monitor's express and specific responsibility included "patrolling and maintaining order in the Cluster A area of the building ... ensuring that students leaving the building are leaving through the proper exit. ... checking the auditorium practice rooms for unauthorized usage. Enforcing school policies as they apply to students .... .

Patrol Specifics:2 student lav's next to auditorium

2 staff lav's with dressing rooms behind auditorium

next to A-8

1 auditorium

(Shepard deposition, Ex. H, Def. Motion; Shhepard aff - dated 12/5/05; Ex. I, J, Def. Motion, post assignments).

The supervising personnel testified that during the transition time, this was not one of the few posts where the monitor was to remain, but that the monitor assigned thereto was free to assist with the outside departure of students in the parking lot or to become one of several monitors to walk the entire school, especially hall areas where more congestion occurred at dismissal time. (Shepard EBT, pg. 430, Ex. H, Def. motion).

The plaintiff has raised questions as to the adequacy of that school plan as it pertains to defendant's negligent supervision; that it failed to have a person monitoring the hall/auditorium during the transition period; that the school was negligent in failing to have sufficient staffing even by its own plan since 3 of the scheduled 12 monitors were absent from work that day, five went outside to attend to the parking lots and buses, at least one was required to stay at the entrance/exit slot leaving only 4 or less instead of 7 persons to monitor the entire rest of the school during this transition period; and that there were no working cameras monitoring the secluded auditorium area.

Evidentiary Submissions [*7]

The evidentiary submissions of plaintiff to support her contention, is an expert's affidavit opining that it was negligent not to have a security guard or person at Cluster A during the critical transition period "to monitor hallways, conduct sweeps', and assist with the physical logistics of student management (including detection and prevention of inappropriate/improper student conduct on the premises". (Milton affidavit, at No.35-#40). And that the failure to observe the secluded area by cameras created a foreseeable danger in that isolated area of the auditorium "where danger lurks when it is not adequately monitored", (Milton affidavit at #37, #41) and that the school was negligent for its failure to follow its own protocols as to camera and person monitors. (#42, #43).

The defendant's violation of its own plan, rules or regulations is evidence of negligence to be submitted to the jury at trial, provided the plan, rule or regulations represents the applicable standard of care and not a higher one. (Richardson, 11th Ed. Section 4-604 NY PJI Comments 2:16 ; 3rd Ed. Pg. 238, 239). However, even the latter consideration is one for the jury. (Id. at 239).

"In light of such a record, a jury could find that the Board, having recognized the need for and put into effect a security plan, breached its duty to provide plaintiffs with adequate supervision at a time when such supervision was most critical." (Citation omitted), Mirand, 190 AD2d 282, 289).

"This is not to suggest that the school's safety plan, such as it was, created any special duty on the part of defendant's in favor of plaintiff. The plan appears to be no more than a compendium of rational rules which any prudent parent would implement." (Schrader, supra at 362).

Further, proof that the plan, rules or regulations represent the standard of care requires independent proof.

"We stress, however that the defendant's failure to comply with the requirements of its security plan was not the only factor establishing negligence (Citations omitted). The jury needed little more than its own common experience to conclude that security or supervisory personnel should have been present at dismissal." (Mirand, 84 NY2d 44, 51).

Here, that proof is also supplied by the plaintiff's expert's opinion. [*8]

Further, violation of the plan is not negligence if it was not intended to benefit the class of persons of which the plaintiff was a member (Ferrara v. Board of Education City of NY, 116 AD2d 693 (2nd Dept., 1986); Weinstein v. Board of Education City of NY, 127 AD2d 655, (2nd Dept., 1987) - the missing security guard was not intended to protect the teachers).

Nor is there liability for breach if the plan was not intended to protect against the injury which the plaintiff suffered and for which there was no school history. (Doe v. Town of Hempstead Board of Education, 18 AD3d 600, (2nd Dept., 2004)). (School guard was designated to prevent physical assaults between or by "fighting" students for which there was a history, and not to prevent female students from being raped in the bathroom by outsiders, where there was no prior history of sexual assaults or outside intrusions).

However, it would cover dangers emanating from the general class of dangers for which the students were intended to be protected.

"And while the rules' genesis may have been in response to the intrusion of outsiders into the school building, the rules were by no means, limited in application to the protection of the students against assault by intruders. They were obviously intended to protect the students from danger whatever the source, and represented an appropriate supervisory response to that danger.". (Shante v. City of NY, et al, 190 AD 356, (1st Dept., 1993) - a third grade girl sent out in hall unsupervised was sexually assaulted by 2 older girls in the bathroom when the older girls were also allowed out of classroom unsupervised, in violation of rules. One of the older girls, Lisa, had an assaultive history).

"Nor on the issue of foreseeability was it necessary, as defendant suggests, ... for plaintiff to show that Lisa had a history of acting out sexually or that she had previously committed the same type of assault as was here involved. (Id. at 362).

"It is not necessary that the exact nature of the danger be foreseeable. All that need be shown is that the general risk and character of the injuries are foreseeable. That standard has been met here." (Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 316-317, (1980)).

Age is a relevant factor. Unlike Schrader, a kindergarten child sent to the bathroom unaccompanied by another as required by the school rules and molested [*9]by an older student was a basis for school liability even though there was no notice of any similar incidents or any prior dangerous conduct by the assailant. (Garcia v. City of NY, 222 AD2d 192, (1st Dept., 1996)).

Adequacy of Supervision of Perpetrator

In evaluating the school's negligence as to the adequacy of its supervision, the jury may take into account the supervision of students who committed the wrong. This is in addition to the assaultive or misconduct history of the student.

"Further raised by this record are questions regarding the adequacy of the supervision of the three boys, also students at the school, who were apparently roaming the building during school hours. They, as well as plaintiff, fall within the well settled rule that a school district is obliged to adequately supervise the activities of students within its charge." (Citations omitted; Logan, supra at 172).

While the hall roaming during the transition period may or may not be applicable the plaintiff and her expert raise the issue of "hall roaming" negligence by which they claim the student here acquired the necessary information of lack of monitor to accomplish his assaultive purposes.

Negligent Supervision is Jury Issue

The submissions are not sufficient to find for the school district as a matter of law.

"The question of whether a defendant acted reasonably under the circumstances'.... can rarely be decided as a matter of law (citation omitted)... ." The specific application of those principles to a case involving a Board of Education ... and whether their actions are adequate and reasonable ... are almost always question(s) of fact'. (citations omitted, Id. at 172).

There are issues of the adequacy of the number of monitors as well as their performance. "Proper supervision depends largely on the circumstances attending the event." (Id. At 691, citing Ohman v. Bd of Education, 300 NY 306, 309, [*10](1949)).

"It was for the jury to determine whether under the circumstances herein 2 instructors constituted adequate supervision for 125 to 150 children ranging from ages 6 to 12 ..." (Ferrill v. Board of Education, 6 AD2d 690, 691, (2nd Dept., 1958); James v. Gloversville School Dist., 155 AD2d 811, (3rd Dept., 1989)); (aides were sitting on bench with backs to play area contrary to specific rules and guides for personnel to oversee the recess).

Foreseeability or Notice of Danger

Notice - Duty

The school seeks dismissal on the grounds that the conduct was unforeseeable as a matter of law.

"While the general duty of a school to supervise is unqualified and mandatory, and not dependent on notice, notice is necessary in this case with respect to the special danger of violence posed by Mr. Westin." (citation omitted, Mirand, 190 AD2d 282, 289).

However, when that duty relates to something that is not in the ordinary experience of a parent or school, then notice or foreseeability of the danger is required.

Here, absent notice, it would seem that ordinarily a 15 year old girl and 17 year old boy should be able to walk together in the school halls to different parts of the building without being accompanied by a hall monitor, or being observed at all times by a camera.

"Actual or constructive notice to the school of prior similar conduct is generally required because, obviously, school personnel cannot reasonably be expected to guard against all of the sudden spontaneous acts that take place among students daily." (Mirand, at 84 NY2d 44, 49).

Defendant seeks dismissal on the grounds that the school had no actual or constructive notice of a sexual assault danger by a fellow student relying on the lack of past violent misconduct of the perpetrator. It asserts that the only known [*11]prior misbehavior of that third party was for tardiness, truancy and resistance to remedial measures for that misconduct. There was no actual or constructive notice of prior violent or sexual harassment behavior or tendencies sufficient to alert the school.

However, the cases cited by defendant are those in which an injury is caused solely by the impulsive, unanticipated act of a fellow student without notice even though their own rules of supervision were violated. (Schrader, supra). However, notice of the foreseeability of the danger encountered by the plaintiff may also be shown by school history, and its security and supervision plan, rules and regulations.

School History of Violence or Sexual Harassment

Relevant to that determination of notice or foreseeability, would be the school history, which may have given rise to the relevant aspect of the plan.

"This [foreseeability] cannot be resolved without reference to the history, if any, of violence at the school, for while a school is not an insurer of student safety, it will be held liable in damages for a foreseeable injury proximately related to the absence of supervision." (Citations omitted). (Logan, supra at 171, 172); Maynard v. Bd of Educ., 244 AD2d 622, (3rd Dept., 1997) - prior pattern of undiscipline, disruptive and unruly behavior in class).

School Plan

Foreseeability may also be determined by the existence of the school's plan and/or the history which gave rise to that relevant aspect of the school's plan which is claimed to be inadequate or violated. Accordingly, the existence of a plan with security measures is relevant in itself to the issue of foreseeability and may constitute actual or constructive knowledge regarding the intended danger to be avoided thereby.

"We note for example that the school in which this incident took place, had established security measures which included the posting of two school guards and at least two school aides on each floor. The question which these measures raise ... is whether the Board had notice, actual or constructive, that a child was at risk of attack if left unescorted to travel the stairwells of this school at a time other than [*12]the scheduled change of class intervals." (Citations omitted; Logan at 171).

In reviewing whether the proof was adequate for the jury's finding of negligence, the Court of Appeals in Mirand likewise noted the school had notice by virtue of the plan without a reference to history, and, instead, the Court made its own determination that it was notice of the danger of an assault by a fellow student with a hammer.

"Supervision of students is obviously needed at dismissal time

when the largest number of students congregate and fights are

most likely to occur. Indeed, this is reflected in the high school's

security plan which called for two to five security officers to

be positioned at the second floor, main entrance at dismissal".

(Mirand v. City of NY, 84 NY2d 44, 50).

The lower Appellate Court had earlier determined the plan was designed to afford adequate supervision during dismissal when "fights were likely to erupt." (Mirand, 190 AD2d 282).

The jury "could find that the Board having recognized the need for and put into effect a security plan, breached its duty to provide plaintiffs with adequate supervision at a time when such supervision was most critical." (Mirand, 84 NY2d 44, 48).

Further, the Court concluded that the jury needed little more than its own common experience to conclude that security or supervisory personnel should have been present at dismissal. (Id.)

Prior Conduct of Josue

Again, the Court takes the facts most favorable to the non-moving plaintiff on this aspect of Josue's conduct and history. Josue, a failing and non-school interested student, embarked upon a scheme to induce the younger and more naive plaintiff to accompany him through the halls to a secluded area where he intended to and did engage in sexual conduct against her will. The plaintiff asserts that Santana gained knowledge of the inadequacy of supervision in the hall auditorium area by virtue of his habitual unchecked hall wanderings, and particularly that day by skipping his 7th period class whereby he could have determined that the Cluster [*13]A monitor was absent from work and unable to prevent him from leading the plaintiff into the more isolated secluded area.

The evidentiary submission of plaintiff to support her contentions that Josue's past conduct created a foreseeable danger to the school of a sexual assault upon another student comes from plaintiff's expert's affidavit. He opines that based upon Josue's academic record (F's), his truancy and tardiness, and his failure to respond to remedial efforts, his easily observable overly sexual' conduct with young female students at the school, which truancy remedial action was not accepted by Josue, or properly responded to by the school would give notice to an experienced counselor "that the student may be experiencing frustration, which are likely to be manifested in behavioral problems (including violence) in school," (Milton affidavit sworn to 12/16/05, #23). The advisor testified that Josue was "unforgettably" athletic and was not fearful of wading into physical fights between two other boys to stop it. (Shepard EBT, pg. 431). Plaintiff's expert opines that the boy should have been removed from the school to "alternative placement" or more strictly controlled and monitored environment. (Milton aff page 8 vii).

Accordingly, based upon the school's employees' testimony and assuming the school experts are in disagreement with plaintiff's expert, the differing expert opinions at best raise jury issues as to whether the conduct alone is sufficient actual or constructive notice of Josue's sexual assault propensities, which precludes summary judgment. (People v. Irizary, 238 AD2d 940, (4th Dept., 1997)).

Further, as aforesaid, plaintiff is not relying solely on Josue's prior conduct, but also school history and foreseeability by virtue of the existence and implementation of a school plan. Accordingly, based on all the circumstances, defendant has not sufficiently showed lack of notice as a matter of law to grant summary judgment in its favor.

Proximate Cause

The last point raised by defendant is that plaintiff has not shown that the presence of cameras or nearby hall monitors would have prevented Santana from perpetrating the sexual assault upon plaintiff.

The Appellate Division in Mirand held and was affirmed that such determination is a jury question and plaintiff is not required to affirmatively prove [*14]that the incident would not have occurred. The trial court dismissed and Appellate Division reversed on the grounds proposed by defendant that "since plaintiff adduced no evidence that conformity to reasonable standards would have prevented the incident. We reverse ...." (Mirand, 190 AD2d at 287).

The Appellate Division, in reversing, stated, "Given a record which shows that at the time of the assault there were no safety officers on the veranda or outside the first floor main entrance, the jury could consider, on the issue of proximate cause, the deterrent effect of the presence of uniformed guards in a school whose officials were well aware of its security needs ... The trier of the facts could find that the sight of uniformed security guards with radios and badges would have had a deterring effect. (See Ferrill v. Board of Education, 6 AD2d 690)." (Mirand, 190 AD2d at 291; Homer v. Board of Education, 177 AD2d 965 (4th Dept., 1991)).

The Court of Appeals, in affirming that aspect further stated, "Even if a breach of the duty of supervision is established, the inquiry is not ended, the question arises whether such negligence was the proximate cause of the injuries sustained... . On the issue of proximate cause, we conclude that a rational jury could find that the complete absence of security or supervisory personnel at a time and place when vigilance was absolutely essential constituted the proximate cause of plaintiff's injuries. Proximate cause is a question of fact for the jury where varying inference are possible." (Mirand, 84 NY2d at 51).

Accordingly, the same can be said here of the possible deterrent effect of the presence of a hall monitor and/or working cameras in the area where plaintiff and defendant entered the prohibited isolated area. Accordingly, proximate cause is a question of fact for the jury.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the plaintiff is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.

SO ORDERED. [*15]

Dated this 10th day of February, 2006 at Rochester, New York.

______________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT