During many depositions, witnesses provide “I do not recall” responses with respect to notice of prior similar events.  In Khosrova v. Hampton Bays Union Free Sch. Dist., the Second Department held that such a response was insufficient to establish lack of notice.  There, plaintiff alleged he was assaulted by a fellow student while waiting for a school bus outside school.  There were no adults present during the incident, and plaintiff sued for inadequate supervision.  In determining a case of inadequate supervision, “it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury.”  In support of its motion for summary judgment, the school submitted the superintendent’s testimony who testified that she “did not recall” whether, prior to the incident there were any fights or disciplinary problems that occurred at the pick-up area.  The Second Department held that the school failed to establish lack of actual or constructive notice of prior similar conduct, and reversed the lower court decision granting its summary judgment motion.

Lack of notice is an important defense in many inadequate supervision cases, but if the witness “cannot recall,” the defense may be unavailable.

http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D36039.pdf.

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