Carter v Uniondale Union Free Sch. Dist.
Annotate this CaseDecided on September 13, 2013
Supreme Court, Nassau County
Alonzo Carter, an infant under the age of 14 years, by his Mother and Natural Guardian, CYNTHIA WHITE and CYNTHIA WHITE, Individually, Plaintiffs,
against
Uniondale Union Free School District and LAWRENCE ROAD MIDDLE SCHOOL, Defendants.
007378/12
Attorney for Plaintiff
The Law Firm of Alan W. Clark & Associates, L.L.C.
650 Wantagh Avenue, Ste. 1
Levittown, NY 11756
Attorney for Defendant
Congdon, Flaherty, O'Callaghan, Reid, Donlon,
Travis & Fishliner, Esqs.
The Omni
333 Earle Ovington Boulevard - Ste. 502
Uniondale, NY 11553
Daniel R. Palmieri, J.
This motion by the defendants, Uniondale Union Free School District and the Lawrence Road Middle School (jointly, defendant) pursuant to CPLR 3212 for summary [*2]judgment dismissing the complaint is denied.
This action concerns an injury allegedly suffered by the infant plaintiff on December 23, 2011 when he was a student at Lawrence Road Middle School.
Infant Plaintiff Alonzo Carter (Alonzo), then a sixth grade student, alleges that during a gym class wrestling match with his partner, Kevon Hennit (Kevon), he was picked up by Kevon and slammed to the ground fracturing his left humerus. According to the testimony of Alonzo, his mother Cynthia White, the sixth grade guidance counselor Mr. Robert Rivas and Alonzo's math teacher Mr. Leonard Fiorentino, there had been prior verbal and physical confrontations between Alonzo and Kevon.
Specifically, Mr. Rivas testified that prior to December 23, 2011, Mr. Fiorentino advised him that Kevon hit Alonzo in the back of the head while they were in the hallway. As a result, Mr. Rivas held two meetings in his office, one with the boys and the other with their parents; the meetings took place approximately two to four weeks before the wrestling incident. When it was brought to Mr. Rivas' attention that there was a conflict between the boys, he advised that they should stop bothering each other. Moreover, during discovery, defendant provided a Student Standard form that was filled out by Alonzo on November 4, 2011. As set forth in the form, Alonzo advised the school that Kevon threatened to put his hands on him.
In the complaint, the plaintiff alleges that the school is liable under the theory of negligent supervision and control. Additionally, plaintiff alleges that the school was put on notice pertaining to the prior aggressive behavior between the boys and that despite the proper notice, the boys were permitted to engage in a wresting match. The movant contends that negligent supervision was not the proximate cause of the plaintiff's injury, in that the school had no duty to protect the plaintiff from his own sudden, voluntary act of putting his hand out while falling, contrary to the instructions given. Further, the District contends that there was no prior conduct or mishaps to put the school on notice that plaintiff and Kevon would fail to follow instructions because prior to the incident, plaintiff and his partner were allegedly supervised by the physical education teacher, Mr. Hugo C. Charles, while they completed the specific wrestling move several times over several weeks as part of their wrestling unit in gym class.
The law on summary judgment is well settled. Summary judgment is a drastic remedy, which should not be granted where there is any doubt about the existence of a triable issue of fact. Sillman v. Twentieth Century-Fox Corp., 3NY2d 395 (1957); Bhatti v. Roche, 140 AD2d 660 (2d Dept. 1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 AD2d 797 (3d Dept. 1992); Gray v. Bankers Trust Co. of Albany, N.A., 82 AD2d 168 (3d Dept. 1981). Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief. Brooks v. Blue Cross of Northeastern New York, Inc., 190 AD2d 894 (3d Dept. 1993). [*3]
Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR 3213[b]), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v. Farrell Line, 64 NY2d 1092 (1985). Absent a sufficient showing, the court must deny the motion, irrespective of the strength of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985).
If a sufficient prima facie showing is made, however, the burden then shifts to the non-moving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212(b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 AD2d 513 (2d Dept. 1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of its allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 AD2d 380 (2d Dept. 1994); Toth v. Carver Street Associates, 191 AD2d 631 (2d Dept. 1993). Nor can mere speculation serve to defeat the motion.
However, the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v. Tedlen Realty Corp., 305 AD2d 385 (2d Dept. 2003); Rizzo v. Lincoln Diner Corp., 215 AD2d 546 (2d Dept. 1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 AD2d 553 (2dDept. 1992); Barr v. County of Albany, 50 NY2d 247, 254 (1980); James v. Albank, 307 AD2d 1024 (2d Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 AD2d 330 (2d Dept. 1993).
The court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. See Village Bank v. Wild Oaks Holding, Inc., 196 AD2d 812 (2d Dept. 1993); Barclays Bank of NY v. Sokol, 128 AD2d 492 (2d Dept. 1987).
Based on the record before it, the Court finds that the defendant has not made a prima facie showing of entitlement to judgment as a matter of law. Specifically, defendant has not sustained its burden of establishing that the incident was not the result of negligent supervision and control, because their own submission raises issues of fact. In any event, plaintiffs have raised issues of fact that require a trial. Armellino v. Thomase 72 AD3d 849 (2d Dept. 2010); see generally, Mirand v. City of New York, 84 NY2d 44 (1994).
As a general matter, schools are obligated to adequately supervise their students; [*4]this duty derives from the school's assumption of custody and control over the students, in place of parents and guardians. David v. County of Suffolk, 1 NY3d 525 (2003); Hansen v. Bath & Tennis Mar. Corp. 73 AD3d 699, 701 (2d Dept. 2010). However, it has been noted that schools are not insurers of safety of their students. Mirand v. City of New York at 49; Convey v. City of Rye School Dist., 271 AD2d 154 (2d Dept. 2000). Schools cannot reasonably be expected to endlessly supervise and control all movements and activities of all their students; thus, schools are not to be held liable "[f]or every thoughtless or careless act by which one pupil may injure another." Lawes v. Board of Educ. of City of NY., 16 NY2d 302, 306; Convey v. City of Rye School Dist., supra.
Therefore, in order to find that the school has breached its duty to provide adequate supervision in the context of injuries caused by the acts of fellow students, the plaintiff must demonstrate that the school "had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated." Mirand v. City of NY, supra at 49; Velez v. Freeport Union Free School Dist., 292 AD2d 595 (2d Dept. 2002); Collis v. Studer, 299 AD2d 386 (2d Dept. 2002). Sufficiently specific knowledge or notice generally requires actual or constructive notice to the school of prior similar conduct. See, Calabrese v. Baldwin Union Free School Dist.,, 294 AD2d 388 (2d Dept. 2002); see Velez v. Freeport Union Free School Dist., supra. Ordinarily, an injury that was caused by an impulsive, unanticipated act of a fellow student will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protected against the injury-causing act. Janukajtis v. Fallon 284 AD2d 428, 429-30 (2d Dept. 2001); Johnsen v. Carmel Cent. School Dist., 277 AD2d 354 (2d Dept. 2000).
In this case, the record reflects that there is evidence that defendant did have prior notice regarding Kevon's alleged violent and/or disruptive behavior directed to the infant plaintiff. In support of their motion for summary judgment dismissing the complaint, defendant relies upon the depositions of school authorities to argue that they were not aware that the students had prior altercations. However, both the record presented by defendant and by the plaintiff in opposition demonstrate the existence of a triable issue of fact as to whether school authorities had sufficient notice of prior violent behavior on the part of the student who was involved in the wrestling match during which the infant plaintiff was injured, such that the behavior on the date of the incident reasonably could have been foreseen. McLeod v. City of NY 32 AD3d 907 (2d Dept. 2006); Wood v. Watervliet City School Dist., 30 AD3d 663, 664 (3d Dept. 2006).
This history of confrontations on separate occasions between plaintiff infant and the other student in this case is distinguishable from those instances where students were injured due to unanticipated and spontaneous accidents that lasted only a few moments that defendant could not have reasonably prevented sudden and spontaneous conduct despite diligent supervision. See, Foster v. New Berlin Cent. School Dist. 246 AD2d 880, 881 (3d Dept. 1998); Walsh v. City School Dist. of Albany, 237 AD2d 811 (3d Dept. [*5]1997); Ronan v. School Dist. of City of New Rochelle, 35 AD3d 429 (2d Dept. 2006).Moreover, the instant case cannot be equated to instances in which a school district was held to have no actual or constructive knowledge of any prior similar conduct by a pupil who was injured by another student. In those cases the pupil's disciplinary record did not show any prior violence against any students; therefore, it was held there was insufficient notice to the school. Strnad v. Floral Park-Bellerose Union Free School Dist. 50 AD3d 774 (2d Dept. 2008); Morman v. Ossining Union Free School Dist. 297 AD2d 788 (2d Dept. 2002).
Here, defendant's own motion papers contain conflicting depositions of the school's personnel regarding notice prior to the date of incident. The gym teacher alleges he had no prior notice and that he adequately supervised the boys during the wrestling match. However, the guidance counselor allegedly had been informed about prior similar conduct between the boys at least three times; he was told by the infant plaintiff, his mother and was informed by his colleague, the math teacher, who witnessed a separate conflict that occurred in the school's hallway. Further, prior to the date of the incident, plaintiff infant filled out a Student Statement form, describing that the same student threatened to put his hands on the plaintiff, as set forth in plaintiff's affirmation in opposition. The Court finds that this raises an issue of fact as to whether defendant reasonably could have known that the incident in which the infant was injured would occur.
Further, the Court finds that defendant's claim that it was Alonzo's own voluntary act of reaching out his arm while falling that proximately caused his injury to be insufficient as to dispositive proof in its favor. By its nature, wrestling is a violent contact sport, and the infant cannot be held to have voluntarily assumed the risk that improper technique could lead to an injury because this occurred during a gym class in which students were required to participate. Stoughtenger v. Hannibal Cent. School Dist., 90 AD3d 1695 (4th Dept. 2011).
Moreover, as a purely factual matter, there is no compelling proof presented that even though he had been instructed otherwise, what the infant did in reaching out his arm as he was being thrown was in fact such an unusual act that no instructor could have anticipated that he would do so. Indeed, given the nature of the sport and the age of the participants, a teacher's expectation that all students would follow instructions precisely as taught would be difficult to accept.Finally, although defendant contends that plaintiff infant voluntarily took part in the wrestling match and picked Kevon as a partner, this does not alter the fact that this was a required gym class, and that the school appears to have had sufficient notice that these two participants should not have been allowed to wrestle one another.
The Court therefore concludes that genuine issues of material fact exist as to whether the defendant's failure to supervise their students properly was the proximate cause of the infant plaintiff's injuries. The motion for summary judgment is therefore [*6]denied.
This shall constitute the Decision and Order of this Court.
E N T E R:
DATED: September 13, 2013_____________________________
HON. DANIEL PALMIERI
Supreme Court Justice
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