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In Wells, the student did not avail himself of available medical care and refused medical assistance, and there was no basis to find that defendant ever knew of the seriousness of his illness.
Summary of this case from Katz v. United Synagogue of Conservative JudaismOpinion
June 11, 1992
Appeal from the Supreme Court, New York County (C. Beauchamp Ciparick, J.).
Plaintiffs' decedent, a 19 year old freshman student, died in his dormitory room after a brief illness, on September 14, 1987. The IAS Court properly determined that defendants had no obligation under either a tort or contract theory of liability to monitor the health of the decedent. New York has affirmatively rejected the doctrine of in loco parentis at the college level (Eiseman v. State of New York, 70 N.Y.2d 175, 190).
We note that during college orientation decedent was made aware of the extensive health care facilities provided by Bard College and that during his illness did not avail himself of such medical care. Further, there was no basis to conclude that defendant ever acquired actual or constructive notice of the seriousness of the decedent's illness or that defendants had any duty to seek medical assistance on his behalf (see, Ivancic v. Olmstead, 66 N.Y.2d 349; Tsang King Fai v. City of New York, 172 A.D.2d 515). This is particularly so, under the circumstances herein, where the decedent, himself, did not believe that his illness was serious, as evidenced by his repeated refusal to seek medical attention, when this was suggested.
Finally, the IAS Court did not abuse its discretion in denying plaintiffs' motion to amend their complaint, for the first time, on the eve of trial, to add a cause of action for breach of an implied contract premised upon language in the Bard College bulletin that peer counsellors would be "responsible for the safety and well-being of students in the residence halls". As previously noted there is no evidence that Bard College, or anyone else, could have been aware of the nature and extent of the decedent's illness, and consequently the proposed amendment was insufficient as a matter of law (Bank Leumi Trust Co. v. D'Evori Intl., 163 A.D.2d 26, 28).
We have reviewed the plaintiffs' remaining claims and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Smith and Rubin, JJ.