Opinion
982 CA 17–02161
12-21-2018
Marilyn BROWN, Individually and as Parent and Natural Guardian of J.L., an Infant, Plaintiff–Respondent, v. FIRST STUDENT, INC., Buffalo Public School District, et al., Defendants–Respondents, Catholic Diocese of Buffalo, Our Lady of Black Rock School, Martha J. Eadie, Sister Carol Cimino, and Debbielynn Doyle, Defendants–Appellants.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is modified on the law by granting the motion in part and dismissing the seventh, eighth, tenth, and eleventh causes of action, and as modified the order is affirmed without costs. Memorandum: Defendants-appellants (defendants) appeal from an order denying their pre-answer motion to dismiss the complaint against them (see CPLR 3211[a][1], [7] ). Accepting the factual allegations in the complaint as true and affording plaintiff every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), we conclude that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence (see generally Ernest v. Red Cr. Cent. Sch. Dist., 93 N.Y.2d 664, 670–672, 695 N.Y.S.2d 531, 717 N.E.2d 690 [1999], rearg. denied 93 N.Y.2d 1042, 697 N.Y.S.2d 571, 719 N.E.2d 932 [1999] ). Supreme Court therefore properly refused to dismiss those causes of action (see generally Villar v. Howard, 28 N.Y.3d 74, 80, 41 N.Y.S.3d 460, 64 N.E.3d 280 [2016] ). "Whether [such causes of action] will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231 [2d Dept. 2006], citing EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).
We agree with defendants, however, that the seventh, eighth, tenth, and eleventh causes of action, which allege various theories of negligent hiring, supervision, and training, do not lie because the subject employees were allegedly "acting within the scope of [their] employment, thereby rendering the employer liable for damages caused by the employee[s' alleged] negligence under the theory of respondeat superior" ( Watson v. Strack, 5 A.D.3d 1067, 1068, 773 N.Y.S.2d 676 [4th Dept. 2004] ; see Malay v. City of Syracuse, 151 A.D.3d 1624, 1626–1627, 57 N.Y.S.3d 267 [4th Dept. 2017], lv denied 30 N.Y.3d 904, 2017 WL 4782663 [2017] ). The court therefore erred in refusing to dismiss those causes of action, and we modify the order accordingly.
Defendants' remaining contention regarding the sixth cause of action is without merit.
All concur except Whalen, P.J., and Centra, J., who dissent and vote to reverse in accordance with the following memorandum:
We respectfully dissent in part inasmuch as we disagree with the majority's determination that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence. We would therefore reverse the order, grant the motion, and dismiss the complaint against defendants-appellants (defendants).
Plaintiff's child was a six-year-old special-education student at defendant Our Lady of Black Rock School (School) and, as alleged in the complaint, the child was sexually abused by a fellow student while riding a privately-owned bus home from the School on at least five occasions in November 2015. The company operating the bus was hired by and held a contract with the City of Buffalo (City) and not the School. In her complaint, plaintiff asserted that she informed the School that her child was being bullied, but that the School took no action and thereby allowed the abuse to continue.
"[A] school has a duty of care while children are in its physical custody or orbit of authority" ( Chainani v. Board of Educ. of City of N.Y., 87 N.Y.2d 370, 378, 639 N.Y.S.2d 971, 663 N.E.2d 283 [1995] ), which generally "does not extend beyond school premises" ( Stephenson v. City of New York, 19 N.Y.3d 1031, 1034, 954 N.Y.S.2d 782, 978 N.E.2d 1251 [2012] ; see Harker v. Rochester City Sch. Dist., 241 A.D.2d 937, 938, 661 N.Y.S.2d 332 [4th Dept. 1997], lv denied 90 N.Y.2d 811, 666 N.Y.S.2d 100, 688 N.E.2d 1382 [1997], rearg. denied 91 N.Y.2d 957, 671 N.Y.S.2d 718, 694 N.E.2d 887 [1998] ). A school continues to have a duty of care to a child released from its physical custody or orbit of authority only under certain narrow circumstances, specifically, where the school "releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating" ( Ernest v. Red Cr. Cent. Sch. Dist., 93 N.Y.2d 664, 672, 695 N.Y.S.2d 531, 717 N.E.2d 690 [1999], rearg. denied 93 N.Y.2d 1042, 697 N.Y.S.2d 571, 719 N.E.2d 932 [1999] ; see Deng v. Young, 163 A.D.3d 1469, 1469–1470, 81 N.Y.S.3d 699 [4th Dept. 2018] ).
In determining that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence, the majority effectively ignores the language in Ernest limiting a school's duty of care to instances where "it releases a child without further supervision " ( id. , 93 N.Y.2d at 672, 695 N.Y.S.2d 531, 717 N.E.2d 690 [emphasis added] ). Those circumstances do not exist here inasmuch as the child was released to the care of the bus company, which was then responsible for the "further supervision" of the child ( id. ). The majority also ignores the precedent set by Chainani, which states that a school that has "contracted-out responsibility for transportation" to a private bus company "cannot be held liable on a theory that the children were in [the school's] physical custody at the time of injury" ( id. , 87 N.Y.2d at 379, 639 N.Y.S.2d 971, 663 N.E.2d 283 ). Therefore, defendants' duty of care ended when the child was released to the physical custody of the bus company, especially where, as here, the bus company was hired by the City and had no contractual relationship with the School.
Defendants also did not assume a special duty of care as a result of their online training program "Virtus," which was created to combat sexual abuse of children. Such a duty is created where a plaintiff "[knew] of and detrimentally relied upon the defendant's performance, or the defendant's actions ... increased the risk of harm to the plaintiff" ( Arroyo v. We Transp., Inc., 118 A.D.3d 648, 649, 987 N.Y.S.2d 426 [2d Dept. 2014] ). Here, plaintiff does not allege that she was aware of Virtus and relied on it to her detriment, or that the program increased the risk of sexual abuse on the school bus. We have reviewed plaintiff's remaining alternative ground for affirmance and conclude that it lacks merit.