Opinion
Index No. 101909/11 Motion No. 510-002
06-28-2013
NIHEEM KWANTAE CHAVIS, an Infant by his Mother and Natural Guardian, LAKISHA ALLEN, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, MOORE CATHOLIC HIGH SCHOOL ASSOCIATION, ARCHDIOCESE OF NEW YORK and COACH GREG ROCCO, Defendants.
Present:
HON. THOMAS P. ALIOTTA
DECISION AND ORDER
The following papers numbered 1 to 3 were fully submitted on the 24th day of April, 2013.
Papers
Numbered
Notice of Motion for Summary Judgment of Defendants THE CITY OF
NEW YORK and THE NEW YORK CITY DEPARTMENT OF
EDUCATION, with Supporting Papers and Exhibits
(dated February 13, 2013) 1
Affirmation in Opposition of Defendants MOORE CATHOLIC HIGH SCHOOL,
CATHOLIC HIGH SCHOOL ASSOCIATION, ARCHDIOCESE OF NEW
YORK and COACH GREG ROCCO, with Supporting Papers and Exhibits,
(dated April 13, 2013) 2
Reply Affirmation of Defendants THE CITY OF NEW YORK and THE NEW
YORK CITY DEPARTMENT OF EDUCATION
(dated April 22, 2013) 3
Upon the foregoing papers, the motion for summary judgment and dismissal of the complaint of defendants THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF EDUCATION is granted.
Plaintiffs commenced this action to recover damages for injuries allegedly sustained by NIHEEM KWANTAE CHAVIS as a result of his involvement in a physical altercation with defendant GREG ROCCO, the coach of defendant MOORE CATHOLIC HIGH SCHOOL's football team (hereinafter MOORE), and several MOORE football players. The altercation occurred at a charity football game held at Tottenville High School on Friday, November 26, 2010 between MOORE and non-party Susan Wagner High School.
Plaintiff was, at the time in question, a student at Tottenville High School and a member of its football team. He alleges that he was a spectator at the charity game, which was held on the Friday night after Thanksgiving, when school was not in session. According to plaintiff, the incident occurred during half-time of the subject football game, when he entered the gym in order to retrieve his football equipment from Tottenville's locker room. At the time, the gym was already occupied by football players from MOORE and their coach, who had been instructed to use it as their locker room for the event. It is further alleged that an argument ensued between plaintiff and COACH ROCCO, which quickly escalated into a melee. As a consequence, plaintiff is alleged to have sustained serious physical and emotional injuries, which are claimed to be permanent.
This action was subsequently commenced by LAKISHA ALLEN, the then-infant's mother, both individually, and on behalf of the infant plaintiff, alleging, inter alia, that THE CITY defendants had a duty to provide for the safety, protection, security, welfare and well-being of the students of Tottenville High School, and that these defendants breached that duty through negligent hiring and supervision practices, as well as failing to provide proper and adequate security at the charity football game. Plaintiff's contend that this failure to adequately protect the students was the cause of plaintiff's injuries.
Plaintiff LAKISHA ALLEN has since withdrawn all of her individual claims.
In the current application, defendants THE CITY OF NEW YORK and its DEPARTMENT OF EDUCATION (hereinafter, collectively, "movants") seek summary judgment dismissing the complaint and all cross claims against them, including the dismissal of plaintiff's civil rights claims. According to these defendants, it is well-settled that the provision of adequate security against attacks by third parties, i.e., persons other than a school's students, is a governmental function for which liability cannot be imposed absent the existence of a special duty. Furthermore, these defendants allege that there is no proof that they owed any special duty to plaintiff.
According to the movants, a special duty of protection is created when (1) the municipality assumes a duty to act on behalf of a specific person; (2) the municipal actors are aware that their inaction will lead to harm; (3) there is direct communication of the assumption of the duty between the municipality and the injured party; and (4) the injured party justifiably relies upon the municipality's affirmative undertaking to his or her detriment. Here, it is argued that the moving defendants did not assume any duty to protect plaintiff, nor did they make any direct assurances to plaintiff or his mother regarding plaintiff's personal security. In this regard, these defendants note that while there is EBT testimony by plaintiff's coach, James Munson, which indicates that the issue of security was raised with the DOE, there is no proof suggesting that any of its employees assumed a specific duty to provide plaintiff with security at this event.
In addition, the movants contend that there is no proof of any knowledge that their inaction would lead to harm. In particular, it is claimed that there is no proof that any of the defendants could have anticipated that plaintiff would be involved in an altercation with the coach and/or members of the MOORE football team. In support, reference is made to Coach Munson's testimony that he made no assurances of safety to anyone, including plaintiff. Rather, it was contemplated that the two school safety agents assigned to the game would provide protection for the entire community of supporters in attendance.
In point of fact, the DOE assigned two school safety agents to the charity event.
Alternatively, it is argued that even if plaintiff was owed a special duty, the most intense supervision could not have prevented this incident from occurring. In support, the movants claim that it is well settled that when an assault occurs in such a short span of time, even the most intense supervision would be ineffective to prevent it. Here, it is undisputed that the incident occurred in a matter of seconds, when plaintiff and COACH ROCCO confronted each other face-to-face and plaintiff allegedly head-butted ROCCO. At this point, the MOORE football players immediately jumped in. Thus, there was never any warning of an impending assault. According to the moving defendants, the EBT testimony of all of the parties makes it clear that the events leading up to the altercation and the altercation itself were effectively instantaneous. Therefore, any alleged failure to provide adequate security was not a cause of this occurrence.
Furthermore, it is argued that an appropriate amount of security was, in fact, provided on the evening of the alleged incident. In support, reference is made to the parties' EBT testimony indicating that there were only 300 attendees at the event. Accordingly, the provision of two security agents plus Coach Munson (acting as a third security agent) is claimed to have been adequate under "event guidelines" which suggest the provision of one security guard for every 100 guests in attendance is sufficient.
The moving defendants also argue that while schools are commonly expected to exercise ordinary and reasonable care to protect their students from dangerous situations, liability for a breach of this duty requires proof, inter alia, that the school had specific knowledge or notice of the dangerous conduct which caused the injury, i.e., that the acts giving rise to the injury should have been reasonably anticipated. Here, the movants claim that there is no such proof.
As for plaintiff's claimed violation of his civil rights under 42 U.S.C.§1983, it is argued that plaintiff has failed to allege the existence of any policy, custom or practice which resulted in a violation of his civil rights. According to these defendants, allegations of a violation of an individual's civil rights cannot be based on the principle of respondeat superior. Rather, in order to hold a municipality liable as a person within the meaning of section 1983, a plaintiff must demonstrate that a specific policy or custom of the municipality caused the deprivation of the injured plaintiff's civil rights. Here, plaintiff has not alleged any specific facts regarding the existence of any policy or custom leading to a violation, and it is well settled that the mere assertion that such a policy exists is legally insufficient. Moreover, plaintiff has failed to establish any causal connection between municipal policy and the conduct which is alleged to have resulted in the violation of his civil rights. It is also argued that the allegation of an isolated incident, especially one which involves employees below the policy-making level, will not suffice to establish a municipal policy or custom for the purpose of imposing liability under 42 USC §1983. Accordingly, plaintiff's cause of action for the alleged violations of his civil rights should be dismissed.
On behalf of THE CITY, it is claimed that it is not a proper party to this action. To the contrary, it is alleged that suits resulting from incidents occurring on DOE property can only be brought against the DOE. This is claimed to be so because THE CITY and the DOE are separate and distinct legal entities, and the former (while retaining title to school premises) has not retained any management, control or maintenance obligations with regard to school property. In addition, it is claimed that the courts in New York have held that an out-of-possession owner with no contractual or statutory obligation to maintain or control the premises cannot be held liable to persons injured while using such property.
Finally, since (1) the altercation occurred on a day when school was not in session, and (2) it occurred at a charity event run by a local charitable organization rather than Tottenville High School, it is claimed that the responsibility for safety should not fall upon the DOE. Manifestly, this was not a regularly-scheduled public high school football game.
In opposition, the remaining defendants, MOORE CATHOLIC HIGH SCHOOL, CATHOLIC HIGH SCHOOL ASSOCIATION, the ARCHDIOCESE OF NEW YORK and COACH ROCCO (hereinafter, "respondents") argue that dismissal of the complaint would be unwarranted because it sufficiently alleges legally cognizable causes of action against THE CITY and its DOE to withstand a challenge under CPLR 3211(a)(7). In addition, respondents contend that questions of fact remain, e.g., as to whether the relationship between THE CITY or its DOE and plaintiff was sufficient to create a special duty to provide protection. In support, it is argued, inter alia, that movants reliance on Jerideau v. Huntington Union Free School District (21 AD3d 992) is misplaced, since plaintiff therein was purely a spectator, while plaintiff at bar was a student at Tottenville High School, the venue of the charity event. In addition, plaintiff claimed at his EBT that he was directed to attend the game by his coach, James Munson. Therefore, the question of whether a special relationship existed between plaintiff and the moving defendants (or the moving defendants and the cross-claiming respondents), cannot be decided as a matter of law.
Plaintiff has not appeared in opposition to this motion.
In opposing the motion, it is further argued that Coach Munson affirmatively and voluntarily agreed to provide security at the subject football game. Accordingly, a triable issue of fact exists not only as to the assumption of a special relationship, but on the issue of reliance by plaintiff and/or MOORE regarding Munson's alleged agreement to provide security for the charity event. In this regard, it is argued that the deposition testimony should be read to indicate, inter alia, that coach Munson assumed direction and control of the event and allowed the charity game to continue notwithstanding the knowledge that adequate security was lacking. Also claimed to be relevant is plaintiff's EBT testimony indicating that he and the other members of the Tottenville football team did whatever Coach Munson told them to do (e.g., to attend the charity football game), and that there was a special relationship trust and reliance between the coach and his players. As a result, an issue of fact is claimed to exist as to whether the player/coach relationship gave rise to a special duty requiring his employer (the DOE) to provide plaintiff with proper security.
Respondents additionally argue that the movants violated the standards of safety and security provided for in the Public School Athletic League (PSAL) Manual, (which requires the home team to assume responsibility for providing adequate security at a public high school football game), and/or the Regulations of the Chancellor of the Department of Education, (which addresses the use of school buildings after hours and the provision of adequate security for the well-being of the attendees at certain after-school functions). It is thus argued that once Coach Munson is seen as having agreed to provide security at the game, his failure to provide adequate security constituted a breach of both PSAL rules and the Chancellor's regulations. According to respondents, liability may be imposed upon THE CITY and its DOE for injuries resulting from the failure to abide by such policies.
Alternatively, respondents argue that Coach Munson's EBT testimony to the effect that protocol required him to contact the DOE on the security issue, suggests that the DOE had assumed the duty to provide adequate security. In any event, it is argued that Coach Munson's alleged representation to Coach ROCCO that he would provide security at the game was sufficient to establish a special relationship between the DOE and both plaintiff and MOORE upon which both were entitled to rely.
On the question of security, respondents also rely on the supporting affidavit of Dr. Leonard K. Lucenko, Phd.,who avers in his professional opinion and within a reasonable degree of certainty based upon his experience in the field of athletic safety, recreational supervision, risk management, coaching, activities administration and athletic facility risk management and safety, that THE CITY and the DOE (through Coach Munson) voluntarily entered into a special relationship with plaintiff, MOORE and COACH ROCCO, thereby charging them with a special duty to provide adequate security at the charity event. According to Dr. Lucenko, this is the logical conclusion to be drawn from the EBT testimony of Coach ROCCO to the effect that he was told by Coach Munson that Tottenville High School would supply all of the necessary security. In addition, he cites COACH ROCCO's further testimony regarding Coach Munson's purported admonition that Tottenville High School could not guarantee the safety of any personal items left in the gym during the game as an acknowledgment of the lack of adequate security.
Moreover, although he agreed that the formula used in every instance requiring security was that cited by the moving defendants (i.e., one security agent for every 100 attendees at a sporting event such as this), plaintiff's expert claimed that the movants improperly disregarded this formula by providing only two security agents. Dr. Lucenko further opined that the failure to provide security for the building itself was improper, especially since the gym in this case had been designated as the locker room for the MOORE football team. More specifically, he maintained that during a high school football game, a team's locker room should represent a safe haven for its players; that the risk of an altercation in the absence of building security was foreseeable; and that security officers should have been present to regulate entry into the Tottenville gymnasium. Had admission to the gym been restricted, it was opined that the incident would not have occurred.
Finally, while respondents concede that governmental action, if discretionary in nature, cannot furnish a basis for liability, they argue that the fulfillment of the security request in this case called for the performance of a ministerial act for which THE CITY and its DOE may be held liable in negligence. For these purposes, a ministerial act is said to envision direct adherence to a governing rule or standard yielding a compulsory result. Here, it is alleged that there was a predetermined formula for deciding the number of security officers necessary for this event, and that movants' failure to provide the compulsory number of security officers was a violation of a ministerial duty, and is alleged to have laid the framework for the ensuing altercation. More specifically, it is respondents' contention that had the security guards been posted at the gym entrance during half-time, plaintiff would not have been able to enter the gym while the MOORE football team and its coach were using it as their locker room and the incident could not have occurred. In short, respondents assert that it was the moving defendants' negligent failure to follow their own guidelines for the provision of security which was the sole proximate cause of plaintiff's injury.
The motion is granted, and the complaint is dismissed.
Summary judgment is a drastic remedy that will only be granted where the proponent of the motion is able to establish the merits of its case as a matter of law, and there are no triable issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). Once the party seeking summary judgment has made a prima facie showing of its right to judgment, it is incumbent on the party opposing the motion to come forward with evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562). However, mere conclusions, expressions of hope or unsubstantiated allegations of fact will not suffice to defeat the motion (id.).
Here, it is the opinion of this Court that the moving defendants have demonstrated their prima face entitlement to judgment as a matter of law by establishing the absence of any special duty to protect plaintiff at the subject charity event. In opposition, respondents have failed to raise a triable issue of fact.
It is well settled that the provision of security by school officials against physical attacks by third parties who are not enrolled at the school is a governmental function involving policy-making decisions based on the nature of the risks presented, and that no liability can arise from the performance of such a function absent a special duty of protection (see Bonner v. City of New York, 73 NY2d 930, 932). Accordingly, a special relationship between the municipality and the citizen different from that running to the general public is required in order to create liability for the failure to provide adequate protection. Here, based on the pleadings and the proof submitted by the respective parties, it is the determination of this Court that no special duty of protection existed between plaintiff and the moving defendants.
To establish a special duty of protection, a plaintiff must show (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) the party's justifiable reliance on the municipality's undertaking (see Cuffy v. City of New York, 69 NY2d 255, 260; Bain v. New York City Bd of Educ, 268 AD2d 451). In this case, assuming arguendo that the DOE, via Coach Munson, agreed to provide security for the charity game, there is no proof of any special relationship with plaintiff. Neither is there any proof that plaintiff relied on the fact that Coach Munson had agreed to provide security. In fact, plaintiff's EBT testimony indicates that Coach Munson directed his players to attend the game in order to support the charity event merely as spectators. In addition, there is no proof that the issue of security was ever discussed with plaintiff, nor were there any assurances made to him by Coach Munson or to anyone else regarding his safety or security.
Insofar as respondents attempt to raise issues of fact regarding movants' alleged knowledge of the sufficiency of security at the game, or that their inaction could lead to harm, it is the opinion of this Court that any discussions which the parties may have had regarding security inside the gym seems to have been aimed more toward the safety and security of the personal belongings of the players, (such as ipods, cell phones and the like), rather than the physical safety of the players. In addition, even if Coach Munson did, in fact, agree to provide security at the game and discussed this issue with MOORE's COACH ROCCO, this is not a sufficient basis on which to impose liability upon THE CITY or the DOE, since "[the] mere implementation of security measures at [a] school [does] not give rise to a special duty" (Bain v. New York City Bd. of Education, 268 AD2d at 451). Also probative is the fact that the assertion by plaintiff's expert that the subject altercation could have been prevented had there been additional security at the game appears to be predicated on the assumption that a school safety agent would have been assigned to the gym door during half-time, a clear intrusion upon the discretionary authority of the DOE. As such it is subject to criticism as containing elements of speculation (see Zuckerman v. City of New York, 49 NY2d at 562). The balance of the affidavit of Dr. Lucenko provides no further insight into whether any special duty or relationship existed between any of the parties.
As to the claim that movants failed to take ordinary and reasonable care to protect plaintiff from a dangerous situation, the Court would note that there is no proof that movants, or their agents (e.g., Coach Munson), had "sufficiently specific knowledge or notice of the dangerous conduct which caused [plaintiff's] injury; that is, that the third-party acts could reasonably have been anticipated" (Mirand v. City of New York, 84 NY2d 44, 49). Moreover, it is undisputed on the papers before this Court that plaintiff's injury resulted from a spontaneous act against which school officials "cannot reasonably be expected to guard" (id.).
Finally, on the matter of plaintiff's civil rights claims, it is well settled that in order to hold a municipality liable under 42 USC §1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights was the result of a municipal custom or policy (see Monell v. New York City Dept. of Social Servs., 436 US 658, 690-694). Here, no such facts have been alleged.
The balance of the respondents' contentions have been considered and rejected.
Accordingly, it is
ORDERED that the motion of defendants THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF EDUCATION is granted, and the complaint as against them is severed and dismissed; and it is further
ORDERED that clerk shall enter judgment accordingly.
ENTER,
HON. THOMAS P. ALIOTTA
J.S.C.