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To: Prof. Donsky
From: Keran Peters
Re: Thesis Statement
Date: February 27, 2012

The Liability of Schools to Adequately Supervises And Protect Student From Injuries From Their Peers In The State Of New York.
The lives of most pre-school and high school students are spent avoiding violence and injuries from their peers. My concern, is who should be held responsible, if a student is injured by another student while on school property?
The New York education Code of Conduct on School Property §2801 (McKinney 2003) defines school property as, “within any building, structure, athletic playing field, playground, parking lot or land contained within the real property boundary line of a public elementary or secondary school; or in or on a school bus; a school function shall mean a school-sponsored or school-authorized extra-curricular event or activity regardless of where such event or activity takes place, including any event or activity that may take place in another state.”
To help resolved matters of student injuries that occurred in school, due to the lack or insufficiency of supervision. Most courts are subjected to use The General Tort Liability of Public School agencies and Institutions of higher learning 38 A.L.R. 3d 380, and The New York Statute, 57 Am. Jur. 2d Tort Liability § 501 (2012). Under these Statutes and the case law of Miranda v. City of New York, 84 N.Y. 2d 44, 637 N.E. 2d 263, 614 N.Y.S. 2d 372 (1994) schools are “under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury. As to proximate cause, the test 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.” They are not, however, insurers of safety and will not be held liable “for every thoughtless or careless act by which one pupil may injure another” Lawes v. Board of Educ., 16 N.Y.2d 302, 266 N.Y.S.2d 364 (N.Y. 1965)
In the case of Walley v. Bivins, 81 A.D.3d 1286, (4 Dept 2011), appeal from an order of the Supreme court of Onondaga county for granting defendant the order of summary judgment to dismiss complaint of . In the case, the plaintiff was a ninth grade student at school. The plaintiff was seeking damages for injuries she sustained when she was stabbed by Ashley Bivins, a seventh grade student at the school. It was undisputed that the school had knowledge of three altercations between the plaintiff and Ashley Bivins before the day of the stabbing. The first incident happened two weeks earlier, when the students were arguing and a teacher had to restrain Ashley Bivins to avoid an exchange of physical altercation. The second altercation, a volleyball coach stopped a physical altercation between the students on a school bus. The third incident, happened the following day, as soon as, plaintiff and Ashley Bivins entered the school. They had a physical fight and both were suspended for three days. The first day returning from their suspension, Ashley stabbed the plaintiff in the leg with a knife. The Appellate Court ruled that the Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint against it. The court also ruled, that the school district will be held liable for negligent supervision of it students when school authorities has sufficient knowledge or advance notice of foreseeable conduct that cause the injury. The court went on to say that it could not have granted the defendant the motion to dismiss the case because the defendant was required to establish that there was no negligence on its part and that there was no breach of the duty of supervision, and if there was a breach that the breach was not a proximate cause, the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by school’s negligence, of the injuries Mirand v. City of New York, 84 N.Y.2d 44. The court concluded, that the defendant could not dispute, that it did not breach its duty to supervision The school certainly could have reasonably anticipated that another altercation would occur when the students returned from their suspension because the previous ones. Summary judgment was denied.
Again, the Appellate Division Fourth Department made the same ruling in the case of Johnson v. Ken-Ton Union Free School Dist., 48 A.D.3d 1276-127, 850 N.Y. 2d 813(4 Dept. 2008) a plaintiff seeking damages for injuries sustained by her son, a special education student that was injured by another special education student, Martin B., when they were allowed to use the bathroom together without supervision. The court ruled that school failed to establish that it did not have notice of Martin’s behavior. The court further concluded that the school could not establish that its breach of the duty of supervision was not a proximate cause of the injuries to the plaintiff’s son. Summary judgment was denied.
Even though, New York Appellate Division Third Department has a different jurisdiction from the Fourth Department, it came to the same ruling in the case of Shoemaker v. Whitney Point Cent. School Dist., 299 A.D.2d 719, 750 N.Y.2d 355 (3 Dept. 2002) the court found the school liable for the injury that the plaintiff suffered at the hand of his classmate while playing on the playground. The school supported its motions for dismissal with evidence, which shows it had no reason to anticipate the altercation and that once the altercation started, it only lasted a short duration of time. The school also showed that the personnel could not have done anything to prevent to the plaintiff from being injured. Even though the school showed compelling evidence, the court still found that there were no school personnel present on the playground at the time of the incident. The court concluded that if there were school personnel’s to intercede the attack on the plaintiff behalf, the intervention may have prevented his injuries. In this case the defendant did not have to provide proximate cause, but they could not justify the lack of supervision on the playground. Summary judgment was denied and the court ruled in favor the plaintiff.
In these three cases the court ruled in favor of the schools and the plaintiffs were denied liabilities. The plaintiff’s in cases of, Foster v. New Berlin Cent. School Dist., 246 A.D.2d 880, 667 N.Y.S.2d 994 (3 Dept.1998), Tomlinson v. Board of Educ. of City of Elmira, 183 A.D.2d 1023, 583 N.Y.s.2d 664 (3 Dept. 1992) and Schlecker v. connetquot Cent. School Dist. Of Islip, 150 A.D.2d 548, 541 N.Y.S.2d 127 (2 Dept. 1989), was dined liabilities on the grounds of inter alia, the court could not have found sufficient evidence to hold the schools liable for the injuries that the plaintiff’s obtain from there pupil. In the Foster case, the plaintiff was injured on the playground when the defendant Arthur Peek jumped on his leg and broke it. The court ruled that there no proximate cause of the plaintiff’s injuries. Since the defendant and the plaintiff did not have and any prior altercation, there were no foreseeable reason that the school would of anticipated or prevented the incident from occurring. The incident only lasted a few moments; it was so sudden and spontaneous that the school was able to predict it. The court went on to say, that the manner in which, the injury occurred, it could not have been prevented, even if there were adequate supervision. The defendants was granted summary judgment to dismiss the action that it failure to maintain a safe environment and provide adequate supervision of the children.
In the cases of Tomlinson, the defendant appeal from the Supreme Court of Chemung County to the Appellate Division, which denied the defendant’s motion for summary judgment dismissing it’s the complaint. The plaintiff, Eric Tomilson was a sixth grade student at Riverside Elementary School in the City of Elimira, Chemung Country. Because of bad weather on the day of the incident the student were required to stay indoors rather than being allowed to go outside for recess. A class aide had to look over the students for the teacher while she was on her lunch break. Eric and other classmates were gathered around a table in the back of the classroom listening to tap recording with the use of earphones. Eric stand up to reset the volume on the tape recording, while sitting back down someone pulled the chain from underneath him; he fell hitting his head. Eric testified that there were no school personnel present in the classroom at the time the incident accrued. On behalf of her son, the plaintiff mother commenced an action against the Board of Education and School District. On the Appellate level the defendants was granted summary judgment. The court found that there were no proximate caused for the plaintiff’s injuries or that there were continuous chain of causation that would reasonably hold School and Board of Education, for negligent supervision in connection to the plaintiffs injuries.
The Schlecker case, the Appellate Division reversed the order of the Supreme Court, Suffolk County which denied the defendant the motion for summary judgment. The defendant Byron Murtha left his class without first obtaining a required pass from his teacher shortly after the commencement of the school day. He approached the plaintiff Robert Schlecker who was standing in front of his locker. They got into an argument and Byron allegedly hit Robert. Just like the Foster and Tomlinson , the court found that there were no factual basis to conclude defendant had any actual knowledge constituting “notice of a particular danger at a particular time” or that the altercation was not anticipated because the both student never had a pervious altercation.
As parents, if you have questions of whom should be held liable for injuries that your child might have sustain during school hours, this is you answer. The cases that I have found, shows that the school will be held liable if the victims of the incidents or altercations can prove that there was proximate cause or that the school had advance notice or knowledge that the incident would likely occur. If the victims can’t provide such causations, the schools, or the Board of Education of City of New York will not be held liable. All Students while on school property is under the protection of the statutes for Tort Liability, it is impossible sue the aggressive student or their parents personally, but it is possible to sue the schools and be award damages if the elements that I stated must be proven.


This project was created by: pkeran

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