Opinion
12-030446
10-02-2018
M.P., an infant under the age of fourteen BY her mother and natural guardian, Catherine RILEY and Catherine Riley, individually, Plaintiffs, v. CENTRAL ISLIP UNION FREE SCHOOL DISTRICT and E.J.M. and infant by his mother and natural guardian, Lillian Dean, and Lillian Dean, individually, Defendants.
PLTF'S ATTORNEY: LAW OFFICES OF LEONARD J. TARTAMELLA, 99 Jericho Turnpike, Suite 200, Jericho, New York 11753 AHMUTY, DEMERS & McMANUS, ESQS., Attorneys for the Defendant Central Islip UFSD, 200 I.U. Willets Road, Albertson, New York 11507 TILLIS LAW GROUP, Attorneys for the Defendants E.J.M and Lillian Dean, 80 Orville Drive, Suite 100, Bohemia, New York 11716
PLTF'S ATTORNEY: LAW OFFICES OF LEONARD J. TARTAMELLA, 99 Jericho Turnpike, Suite 200, Jericho, New York 11753
AHMUTY, DEMERS & McMANUS, ESQS., Attorneys for the Defendant Central Islip UFSD, 200 I.U. Willets Road, Albertson, New York 11507
TILLIS LAW GROUP, Attorneys for the Defendants E.J.M and Lillian Dean, 80 Orville Drive, Suite 100, Bohemia, New York 11716
Sanford N. Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendant, Central Islip Union Free School District (hereinafter the "School District"), dated January 9, 2018, and supporting papers; (2) Affirmation in Opposition by plaintiffs' counsel, dated February 12, 2018; and (3) Affirmation in Reply, dated February 28, 2018, it is
ORDERED , that defendant School District's motion for summary judgment, pursuant to CPLR § 3212, is DENIED .
Plaintiffs commenced this action seeking damages for personal injuries allegedly sustained by the infant plaintiff, M.P., on November 1, 2011, in the hallway of the Central Islip Pre-K Kindergarten Center (the "school"). Specifically, plaintiffs claim that M.P. was injured when she was pushed by the infant defendant, E.J.M, another student at the school. Plaintiffs commenced this action by filing and serving defendants with a Summons and Verified Complaint, both dated October 2, 2012. Issue was joined by service of an answer on behalf of defendant School District dated October 25, 2012. On May 20, 2014, plaintiffs served an Amended Summons and Amended Verified Complaint on the defendant School District, which the School District answered on May 30, 2014 (see Exhibits "A" and "B" attached to the Notice of Motion.) E.J.M. and his mother, defendant Lillian Dean, have not appeared or otherwise responded to process.
By Short Form Order dated November 20, 2014, the Hon. Daniel Martin granted a default judgment against the non-appearing defendants, with an inquest on damages to follow the trial or other disposition of the action (see Exhibit "I" attached to the Notice of Motion).
Plaintiffs allege that the School District was negligent in its ownership, operation, management, maintenance, control, supervision, care and charge of the School District's Pre-K Kindergarten Center; in failing to provide the infant plaintiff with a supervised and safe passage to class; and in allowing the hallways at the school to remain unmanned and unsupervised while children, including the infant plaintiff, were entering the school and walking to their class (see Verified Bill of Particulars attached to the Notice of Motion as Exhibit "C" at ¶ 16).
The infant plaintiff, M.P., testified at a hearing pursuant to General Municipal Law § 50-h on July 10, 2012, when she was six years old, and at an examination before trial ("EBT") on April 18, 2017, when she was eleven. (See 50-h hearing transcript and April 18, 2017 EBT transcript, attached to the moving defendant's Notice of Motion as Exhibits "D" and "F", respectively.) At her EBT, M.P., who was then in fifth grade, stated that she had been injured in the hallway at the school, while walking to her kindergarten classroom, when another kindergarten student pushed her, causing her to hit her head. The student who pushed her had not pushed her prior to this incident; he pushed her on this occasion because she had bumped into him bumped into him earlier. M.P. did not recall at her EBT if any adults had been present when the incident took place (Exhibit "F" at pp. 9-13).
Jessica Iafrate, who was principal at the school at the time of incident, testified at an EBT on behalf of the School District on May 1, 2017 (see EBT transcript of Ms. Iafrate attached to the School District's motion as Exhibit "H"). In her capacity as principal, she was in charge of building operation, curriculum and advancement for all students in pre-k and kindergarten (id. at p.7). Ms. Iafrate testified concerning the arrival protocol for students at the school as follows: An aide was assigned to each bus that arrived at the school. Each bus contained approximately 10-20 students. Aides were also assigned to strategic locations within the school to assist students as they traveled through the hallways to their classrooms. Ms. Iafrate estimated that there were approximately twelve aides, in total, present on the date of the incident. Ms. Iafrate testified that the incident was reported to her by an aide, Lydia Kortright. After learning of the incident, Ms. Iafrate conducted an investigation into the circumstances surrounding it and learned that earlier that day, the infant defendant, E.J.M, had been "smacked" on the nose by M.P.'s coat. Thereafter, when the two students arrived at their classroom, E.J.M pushed and kicked M.P., causing M.P.'s head to hit the wall (id. at p. 65).
In a separate affidavit proffered by the School District, Ms. Iafrate attests that she is not aware of any prior incidents between the infant plaintiff and infant defendant having been reported to her or any other school personnel (see Exhibit "J" attached to the School District's motion). The School District also proffers an "Incident Report" completed by Lydia Kortright, who was in the hallway at the time of the incident (see Exhibit "K" attached to the School District's motion). Under the section of the incident report entitled "Full description of incident," Ms. Kortright stated that "[a]ll students sitting on outside the classroom on the floor next to the wall. I was walking and another child said to me that ‘M’ was crying. I saw blood on the wall...I saw blood on her head. I walked her to the nurse." (Id. )
The School District grounds its motion in its contention that based upon the facts stated in Ms. Iafrate's EBT testimony and affidavit, any alleged lack of supervision at the time of the incident could not, as a matter of law, be deemed a proximate cause of M.P.'s injury, thus entitling it to summary judgment in its favor. Specifically, it argues that as there was "no prior history" of any similar incidents occurring between E.J.M and the infant plaintiff, nor is there any other evidence to suggest the School District had actual or constructive notice of "a particular danger at a particular time," the conduct that caused M.P.'s injury must be deemed nothing "other than an unanticipated, independent act of another student" for which it can have no liability (Affirmation of Thomas A. Montiglio, Jr., Esq., at ¶ 32). Accordingly, the School District maintains that it is entitled to summary judgment in its favor, dismissing the plaintiffs' claims against it, as liability for negligent supervision of students will lie only where the dangerous conduct that allegedly caused the plaintiff's injury "could reasonably have been anticipated" ( Mirand v. City of New York , 84 NY2d 44 (1994] ).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 508 NYS2d 923 [1986] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985] ). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v. New York Univ. Med. Ctr. , supra ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Ctr. , supra ). Once such proof has been offered, the burden then shifts to the opposing party, who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment ( CPLR 3212 [b]; Alvarez v. Prospect Hosp. , supra ; Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ). The court's function on a motion for summary judgment is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, so the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001] ; O'Neill v. Town of Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987] ).
Here, plaintiffs' claim against the School District is based upon their allegation that the School District's failed to provide adequate supervision as students, including M.P. and E.J.M., entered the school and passed through the hallways on their way to their kindergarten classrooms and that the failure to provide adequate supervision was a proximate cause of M.P.'s injury. Indeed, it is well settled that schools have a duty adequately to supervise the students in their charge and that they are subject to liability for foreseeable injuries proximately related to the absence of adequate supervision ( Mirand v. City of New York , supra ). To prevail under a theory of negligent supervision, an injured plaintiff must, therefore, show not only that the school was negligent in failing to provide adequate supervision, but that the injury was proximately caused by the school district's negligence. The test for proximate 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).
In this case, issues of fact preclude the granting of summary judgment. Whether a school district breached its duty to provide adequate supervision of its students, and, if it has, whether such breach of duty was a proximate cause of the plaintiff's injury, are generally factual issues for the trier of fact. With respect to the first, the duty to provide adequate supervision, it has been said that that duty " ‘derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians’ " ( K. J. v. City of New York, 156 AD3d 611, 613 [2d Dept 2017], quoting Mirand v. City of New York , supra, 84 NY2d at 49, and citing Khosrova v. Hampton Bays Union Free Sch. Dist. , 99 AD3d 669, 671 [2d Dept 2012].) Indeed, "[a] school is obligated to exercise such care over students in its charge that a parent of ordinary prudence would exercise under comparable circumstances" ( Khosrova v. Hampton Bays Union Free Sch. Dist. , supra, 99 AD3d at 670 (citations omitted) ).
Here, Ms. Iafrate conceded in the EBT testimony she gave on behalf of the School District that the fact that the incident between M.P. and E.J.M. occurred unobserved by any school employee was "a departure" from the school's protocol, which called for continuous observation of arriving kindergarten students by school personnel from the time they left their buses until they were taken from the hallway into their classrooms. Further, although Ms. Iafrate attests, in her affidavit in support of the School District's motion, that she is unaware of any prior incidents between the infant defendant E.J.M. and M.P. having been "reported to me or other school district personnel," neither she nor anyone else addresses whether there were any instances of occurrences involving the minor E.J.M. and students other than M.P., or staff, that would have placed the School District on notice regarding a propensity for potentially harmful conduct on his part (see generally Khosrova v. Hampton Bays Union Free Sch. Dist. , supra, 99 AD3d at 670 ["While there was no evidence of prior similar conflict between the injured plaintiff and the assailant, the assailant's lengthy disciplinary record showed that, prior to the incident, he had exhibited violent tendencies and assaulted other students and an assistant principal."]; K. J. v. City of New York, supra, 156 AD3d at 614 ["The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff's assailants".] ) Here, the School District has failed to demonstrate prima facie that it was fulfilling its duty to provide adequate supervision when the incident between the infant parties took place.
The School District has also failed to demonstrate the absence of any issue of fact with respect to proximate cause. The School District, citing the Appellate Division's decision in Scarito v. St. Joseph Hill Acad., 62 AD3d 773 [2d Dept 2009], seeks both to charge the plaintiffs, in the first instance, with the burden "to demonstrate the alleged negligent supervision was the proximate cause of the accident" and to discount the plaintiffs' contentions as based upon insufficient "surmise, conjecture and speculation." What the Appellate Division actually held in Scarito , however, is that the burden to raise a triable issue of fact passes to the plaintiff only after the "defendants established their entitlement to judgment as a matter of law by demonstrating," inter alia, "given the attendant circumstances, that the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision" ( Scarito v. St. Joseph Hill Acad., 62 AD3d at 775 ) [citations omitted] ). Here, the defendant School District has made no such demonstration. On the contrary, the plaintiff mother, Catherine Riley, testified at her deposition that following her daughter's injury, Ms. Iafrate, the school's principal, called her and reported that her daughter's injury was the result not of an isolated shove, but the result of a seemingly protracted incident that escalated as it progressed, culminating in the push and kick that propelled M.P. against the wall:
See also Convey v. City of Rye School Dist. , 271 AD2d 154, 160 [2d Dept. 2000] ("where an incident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury"); Siegell v. Herricks Union Free School Dist. , 7 AD3d 607 [2d Dept. 2004] ; Tanon v. Eppler , 5 AD3d 667, 668 [2d Dept. 2004].
It appears from the plaintiff mother's testimony that Ms. Iafrate indicated that she had based her report on conversations had with both children following the incident. Although Ms. Iafrate was less than clear, in her own deposition testimony, about the scope of the investigation she conducted following the incident, she did state that she learned what had occurred by "questioning students in the vicinity," including E.J.M. "specifically" and "the little girl who reported the incident to the aide in the hallway"; she was, however, uncertain whether she had also talked with M.P. It should be noted that in her affidavit in support of the current motion, Ms. Iafrate states that her investigation consisted of "speaking with several students in regard to this matter" later that afternoon, and that she describes the "physical contact" that resulted in M.P.'s injury - apart from the earlier accidental brushing of M.P.'s backpack against E.J.M.'s nose - as consisting entirely of a single kick by E.J.M., without any prior conversation with M.P., that caused M.P. "to lose her balance and fall back into the wall." (Iafrate Affidavit ¶ 10.) Ms. Iafrate further avers that she spoke with the mother the following dayand "advised her as to what had occurred." (Id., ¶ 11.)
A ... So he pushed [M.P.] a few times, and then [M.P.] pushed him back, and then [Ms. Iafrate] said he pushed [M.P.] with his hands and foot. She said he pushed her with two hands and one foot into the wall, and that's when she hit her head and busted it open.
...
Q How many times did she say [E.J.M.] pushed [M.P.]?
A A few, three or four times that he pushed her before [M.P.] pushed him back, and then he pushed her again. I guess he didn't like being pushed....
(See Exhibit "G" at pp. 10-11.)
As the Appellate Division emphasized in K. J. v. City of New York, supra: 156 AD3d at 614
In determining whether an incident occurs "in so short a span of time that even the most intense supervision could not have prevented it" ( Convey v. City of Rye School Dist., 271 AD2d 154, 160, 710 N.Y.S.2d 641 ; see Tanenbaum v. Minnesauke Elementary School, 73 AD3d 743, 744, 901 N.Y.S.2d 102 ; Siegell v. Herricks Union Free School Dist., 7 AD3d 607, 608, 777 N.Y.S.2d 148 ), "[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding" the incident ( Wood v. Watervliet City School Dist., 30 AD3d at 665, 815 N.Y.S.2d 360 ; see Mirand v. City of New York, 84 NY2d at 50, 614 N.Y.S.2d 372, 637 N.E.2d 263 ).
( Id., 156 AD3d at 614.) Here, at the very least, then, there is an issue of fact concerning the actual time span over which the exchange between the two children occurred and whether, had school personnel been present when the incident began to intensify , they could have intervened in time to prevent the final shove and kick that caused M.P. to hit her head against the hallway wall. Moreover, to the extent that the moving defendant seeks to call into question the factual basis for plaintiffs' characterization of the incident as having occurred "over a period of several minutes" - a time frame that, in any case, is not inconsistent with the sequence of events the plaintiff mother testified was reported to her by Ms. Iafrate - the absence of direct proof from any percipient adult observer is, at least on the facts presented so far, quite likely attributable to the school's admitted departure from its own protocol for the supervision of arriving kindergarten students. (Cf. Haft v. Lone Palm Hotel , 3 Cal.3d 756, 478 P.2d 465, 476, 91 Cal.Rptr. 745, 756 [1970] (burden on defendant motel to prove that its failure to provide lifeguard or display sign warning that none was on duty was not proximate cause of decedents' unwitnessed drowning in motel's pool; defendants may "appropriately be designated at ‘fault’ for the factual deficiencies that are present"), cited and quoted in In re Agent Orange Prod. Liab. Litig., 597 FSupp 740, 828 [EDNY 1984 (Weinstein, J.) ], aff'd sub nom. In re Agent Orange Prod. Liab. Litig. MDL No. 381 , 818 F2d 145 [2d Cir. 1987] ; cited in Hall v. E. I. Du Pont De Nemours & Co., 345 FSupp 353, 367 [EDNY 1972 (Weinstein, J.) ].) Hence, at the very least, there is an issue of fact with respect to whether the alleged negligent supervision on the part of the moving defendants was a proximate cause of M.P.'s injury.
There seems to be agreement that, as noted above, the interaction between the two kindergartners in fact began earlier, when some time after exiting her school bus and while traveling through the school's hallway, either M.P. bumped into E.J.M. - the plaintiff mother's account, see Exhibit "G" at p. 10 - or her coat or backpack struck E.J.M. in the nose - see Ms. Iafrate's Affidavit at ¶ 10; Exhibit "H" at p. 56. According Ms. Iafrate, although that "contact was unintentional, ... EJM became upset that this had occurred and proceeded to walk to class in anger."
Accordingly, and for the above reasons, the School District's motion for summary judgment is denied.
The foregoing constitutes the decision and order of the court.