Goff v Roosevelt Union Free School Dist.

[*1] Goff v Roosevelt Union Free School Dist. 2010 NY Slip Op 51990(U) [29 Misc 3d 1224(A)] Decided on November 10, 2010 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2010
Supreme Court, Nassau County

Latwania Goff, Individually and as m/n/g, of Deasia Grandberry, an Infant under the age of 17 years, Plaintiffs,

against

Roosevelt Union Free School District and Roosevelt High School, Defendants.



013455/08



Counsel for the Plaintiff Latwania Goff:

Albert Zafonte, Jr. Esq.

215 Uniondale, NY 11553

(516) 505-7001

Counsel for the Defendant Roosevelt UFSD:

Heather J. Mondelli, Esq.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger

333 Earle Ovington Blvd. Suite 502

Uniondale, NY 11553

(516) 542-5900

Randy Sue Marber, J.

Papers Submitted:

Notice of Motion.................................x

Affirmation in Opposition...................x

Reply Affirmation................................x [*2]

Upon the foregoing papers, the Defendant's, ROOSEVELT UNION FREE SCHOOL DISTRICT ("DISTRICT"), motion, pursuant to CPLR § 3212, seeking an order awarding it summary judgment and dismissing the complaint, is decided as hereinafter provided.

The Plaintiff commenced this action seeking damages for personal injuries allegedly sustained by infant due to the alleged the intentional act of a fellow student. The infant Plaintiff, DEASIA GRANDBERRY ("GRANDBERRY"), and her assailants, Keysheana Chappman ("Chappman") and Latasha Smith ("Smith"), were students at Roosevelt High School in the Defendant, DISTRICT at the time of the incident giving rise to this action. According to the Plaintiff, on October 9, 2007, she first observed her assailants in the attendance office of Roosevelt High School in the morning while walking to her first period class. See 50-h Transcript, dated February 5, 2008, attached to the Defendant's Notice of Motion as Exhibit "D", at pages 13-17. The Plaintiff further testified that she did not make eye contact with, or say anything to Chappman and Smith. During her first period class, the Plaintiff asked her teacher for a pass to go to the main office of Roosevelt High School, indicating that she had to call her mother. Id.at pages 20-21. While walking to the main office, the Plaintiff heard Chappman and Smith following behind her, at which time she heard Smith say, "Deasia is by herself now." Id. at page 27. Thereafter, the Plaintiff began walking faster towards the main office, at which time she heard Smith say, "Deasia, we want to fight you." Id. at pages 31-32.

The Plaintiff testified that she then entered the main office, went behind the counter and asked the secretary, Ms. Williams, to use the telephone. Ms. Williams inquired as to the reason the Plaintiff needed to use the telephone, to which the Plaintiff responded that she was being chased girls who are trying to "jump" her. Id. at pages 40-41. The Plaintiff further testified that, after this verbal exchange, Ms. Williams walked away and proceeded into the hallway of the main office. While standing behind the counter, the Plaintiff observed her assailants outside the main office. Grandberry testified that Smith and Chappman were calling out to her to come outside the main office. According to the Plaintiff, she was behind the counter for approximately seven to eight minutes. After that time, she observed her assailants enter the main office. Upon entering the main office, the Plaintiff testified that Smith came behind the counter and Chappman came in front of the counter.

The Plaintiff additionally testified at an Examination Before Trial ("EBT") on September 22, 2009. The Plaintiff testified at her EBT that Smith did not come behind the counter, but rather, came to a walkway on the side of the counter that leads to the area behind the counter. See Plaintiff's EBT, dated September 22, 2009, attached to the Defendant's Notice of Motion as Exhibit "F", page 60. The Plaintiff testified that upon observing her assailants enter the main office, she proceeded to move backwards towards a copier. Id. at 61. When the Plaintiff reached the copier, another secretary in the main office, Ms. Simeone, walked toward the counter to stop Smith. Id. at 62. The Plaintiff stated that Ms. Simeone was trying to block Smith from her. Id. at 63. The Plaintiff testified that Smith then pushed the secretary to try and get to her. At that time, the Plaintiff moved towards the Principal's office in an attempt to get away. Id. at 64. The Plaintiff testified that she looked into the Principal's office and realized that no one was there. Id. at 65.

According to the Plaintiff, she went behind Ms. Simeone for protection as Chappman [*3]was attempting to jump over the counter to get to her. Id. at 67. Next, Smith removed a belt from her neck and hit the Plaintiff on the upper left portion of her face hitting her left eye. Id. at 72. The Plaintiff testified that the belt was "draped" over Smith's neck. She also observed the belt "draped" over Smith's neck earlier in the morning when she was going to her first period class. Id. Thereafter, a security guard assisted in removing Smith and Chapman from the main office. The security office is located across the hall from the main office. See 50-h Transcript, dated February 5, 2008, attached to the Defendant's Notice of Motion as Exhibit "D", at page 72.

Debbie Williams, the secretary that was present at the time of the incident, also testified at an Examination Before Trial on September 22, 2009. Ms. Williams testified that all students entering the building are required to pass through metal detectors to prevent the entry of items that could harm other students or personnel. See EBT of Ms. Williams, dated September 22, 2009, attached to the Defendant's Notice of Motion as Exhibit "G", page 21. Ms. Williams testified that on October 9, 2007, the Plaintiff came into the Main Office, crying, asking to use the telephone. Id. at 39. Ms. Williams testified that the other secretary, Ms. Simeone, also began speaking with the Plaintiff. Id. at 41. She testified that after speaking with the Plaintiff, two ladies walked into the main office. Ms. Williams asked the ladies what they wanted, to which they responded that they "wanted Deasia." Id. at 43. The two ladies that Ms. Williams observed eventually stated that they wanted to fight the Plaintiff. Id. Ms. Williams testified that she told the ladies that they had to leave the office. Id. at 44. At some point thereafter, Ms. Williams testified, the Principal, Dr. Vaughn-Shavuo, came into the Main Office and began asking one of the ladies why she was getting involved. Id. at 46. According to Ms. Williams, the ladies were calling out to the Plaintiff that they wanted to fight her. Next, Ms. Williams saw the Plaintiff go towards Chapman and Smith, and she rushed across the room in front of the Plaintiff. At that time, Ms. William's testified, that Chappman, not Smith, threw the belt over the counter and struck the Plaintiff in the face. Id. at 49. The Principal was restraining Chappman as she said she had wanted to fight the Plaintiff. Id. When Ms. Williams was asked how much time had passed from the time she first saw the Plaintiff until the time the Plaintiff was struck by the belt, she stated that she could not say whether it was more or less than fifteen minutes. Id. at 51. The Plaintiff testified that there were no prior incidents with either Smith or Chappman. Further, she testified that the Plaintiff had not made any prior complaints about Smith or Chappman to school personnel.

Schools have a duty to adequately supervise the students in their charge and are subject to liability for foreseeable injuries proximately related to the absence of adequate supervision. Mirand v. City of New York, 84 NY2d 44 (1994). However, an injury 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. Convey v. City of Rye School Dist., 271 AD2d 154 (2nd Dept. 2000). [*4]

To prevail under a theory of negligent supervision, the Plaintiff must show that the injury was foreseeable and proximately caused by the school district's negligence. The foreseeability of one student intentionally harming another generally requires proof of actual or constructive notice to the school of prior similar conduct because school personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily. Mirand v. City of NY, supra at 49. The test for causation is whether under all the circumstances, the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence. Id. at 50. These issues, the adequacy of supervision and proximate cause, are generally factual questions for the trier of fact.

Summary judgment must be granted if the proponent makes "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," and the opponent fails to rebut that showing. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986).

Addressing first the issue of forseeability, the Defendant contends that the interchange between the Plaintiff and her assailants immediately before she was struck by the belt was insufficient to put the school personnel on notice that a belt was about to be thrown or swung at the Plaintiff. See Defendant's Affirmation in Support at ¶ 34. The Defendant further contends that the Plaintiff's admission that she had no prior incidents with either Chappman or Smith and her failure to inform school personnel that Chappman and Smith wanted to fight her, supports their contention that the school had no notice of a particular danger at a particular time. Specifically, the Defendant contends, in its affirmation in support, that "there was simply no advance notice to the District that there was a problem between the students such would have suggested that they be supervised any more closely than they already were." See Defendant's Affirmation in Support at ¶ 37. The Defendant claims that without evidence of a known violent propensity and no history of fighting between the students, summary judgment should be granted. In support of its argument, the Defendant cited to Busby v. Ticonderoga CSD, 258 AD2d 762 (3rd Dept. 1999) and Schlecker v. Connetquot CSD, 150 AD2d 548 (2nd Dept. 1989).

In opposition, the Plaintiff contends that the District was on notice as Chappman and Smith made it known to school personnel that they intended to cause harm to the Plaintiff. The Plaintiff argues that despite her attempts to seek protection in the main office of the school, where she remained for approximately ten minutes, she was still caused to suffer injuries to the area around her left eye by Smith. Based upon this, the Plaintiff contends that school personnel had sufficient knowledge and notice of the dangerous conduct in which the assailants intended to engage. Additionally, the Plaintiff submits that the injuries were proximately caused by the breach of the school's duty to supervise the students.In the cases cited by the Defendant in support of its motion for summary judgment, the facts present a circumstance where an injury was caused by a sudden, unanticipated act of a fellow student. For instance, in Busby, supra , shortly after a fellow student stated to the plaintiff that he was going to fight him, he "sucker punched" the plaintiff. The Appellate Division, Third Department, found that the statement, without more, was insufficient to [*5]cause the District to anticipate the student's eventual injury causing conduct or to require it to take any added precautions to protect the Plaintiff from the fellow student's sudden act, which came to a surprise to all persons present. Busby, 684 NYS2d at 711. The Court finds the instant case distinguishable.

Here, the Defendant's witness, Ms. Williams, admits that the Plaintiff arrived in the main office crying, requesting to call her mother. The Plaintiff testified that when asked why she needed to make the call, the Plaintiff responded that she was being chased and was going to be "jumped." According to the Plaintiff, Ms. Williams left the counter area at that time. The Plaintiff testified that approximately seven to eight minutes elapsed before Chappman and Smith entered the Main Office. There is no evidence submitted by the Defendant that establishes whether any school personnel attempted to contact security during that time. Further, Ms. Williams testified that Chappman and Smith repeatedly stated their intent to cause harm to the Plaintiff. When questioned at her examination before trial as to how much time lapsed between the Plaintiff's arrival at the Main Office and the injury causing incident, Ms. Williams testified that she could not say whether it was more or less than fifteen minutes.

In Schlecker, supra , another case relied upon by the Defendant, the plaintiff was struck by a fellow student after the two had exchanged a few words. The Second Department held that the school had no notice of a particular danger, and that the sole cause of the altercation was the unanticipated act of another student. The matter at bar is similarly distinguishable as school personnel were notified of the danger that the Plaintiff was going to be harmed. The seven to eight minutes that the Plaintiff claimed elapsed from the time she first alerted school personnel until the time she was struck by the belt cannot be held to be a sudden, unanticipated, unforeseeable act that could not have been reasonably anticipated by the Defendant, DISTRICT.

Based on the record, the Defendant has failed to meet its burden regarding the issue of foreseeability. All of the cases relied upon by the Defendant involve instances where the plaintiff was injured with no warning to any school personnel. Here, to the contrary, viewing the facts in the light most favorable to the Plaintiff, there is an issue of fact as to whether the secretaries, Ms. Williams or Ms. Simeone, breached their duty of supervision by failing to summon security. Indeed, no evidence was submitted by the Defendant regarding whether either secretary or the Principal summoned security personnel. Given the close proximity of the security office, which was across the hall from the main office, there is an issue of fact regarding whether school personnel acted reasonably under these circumstances.

The Defendant argues that the removal and throwing of the belt by Smith was sudden and too quick to have been prevented. However, the issue is not the speed of the injury causing act. Rather, it is whether, prior to the conduct that caused the injury, the school had sufficient time to prevent the injury. See Mirand v. City of New York, supra at 50. Once repeated statements were made to school personnel that fellow students intended to cause physical harm to the Plaintiff, a reasonable fact finder could determine that the school personnel should have envisioned the need for closer supervision of the students at the time the altercation occurred.

Further, the Defendant failed to meet its prima facie burden of showing that its failure to supervise was not the proximate cause of the Plaintiff's injuries. The test for causation is satisfied where, under all the circumstances, the chain of events that followed the negligent act or omission was normal or a foreseeable consequence of the situation created by the school's negligence. In [*6]support of its argument, the Defendant cites several cases where the defendant was entitled to summary judgment because the accident occurred in so short of a span of time that even the most intense supervision could not have prevented the injury. None of the cases relied upon by the Defendant involve a circumstance where school personnel were put on notice by students' verbal threats that an altercation would occur and after a significant period of time, the plaintiff sustains an injury based upon those very threats. In the same regard, none of the cases cited by the Defendant involve an instance where the altercation occurred after the plaintiff sought protection from school personnel and the injury occurred thereafter.

Here, by failing to promptly summon security or place the Plaintiff in a safe area, such as the assistant principal's office or principal's office, the DISTRICT's conduct may be found by the trier of fact to be the proximate cause of the Plaintiff's injuries. Proximate cause is a question of fact for the jury where varying inferences are possible. Mirand, supra , 84 NY2d at 51.

Finally, the Court finds unpersuasive the Defendant's contention that the Plaintiff voluntarily entered into a physical altercation and voluntarily moved from a place of safety into harms way, and, thus, is precluded from pursuing this action.

Based upon the record presented here, a reasonable fact finder could find for the Plaintiff, thereby precluding summary judgment.

Accordingly, it is hereby

ORDERED, that the Defendant's motion for summary judgment, pursuant to CPLR § 3212, is DENIED.

This constitutes the decision and order of the Court.

DATED:Mineola, New York

November 10, 2010

________________________________

Hon. Randy Sue Marber, J.S.C.