NY High School not Liable for Nearby Gang Assault of Student

A New York court recently deal with the issue of a school’s duty to control gang violence in Diaz v Brentwood Union Free Sch. District.  In this case, a 16 year old high school student was assaulted by gang members after exiting Brentwood High School property. The plaintiff filed suit in Suffolk County Supreme Court against the school alleging inadequate supervision.

The plaintiff testified that before leaving the school grounds, he noticed a group of six people that he thought were gang members walking down the street toward the school, yelling “[w]here’s the Bloods around here?” The plaintiff left the school grounds, and was assaulted 10 feet away from the school by the group.  He also claimed that before he was assaulted, he had attempted to return to the school campus, but the security guards prevented him from re-entering.

The defendant high school moved for summary judgment arguing it could not be liable because the assault occurred when the plaintiff was not on school property and was no longer in the defendant’s custody or under its control. Suffolk County Supreme Court granted its motion, and dismissed the complaint.

On appeal, the Second Department affirmed the Supreme Court’s decision, finding that the key was the fact that the assault occurred outside of the school’s property. The Court held that “a school is not an insurer of the safety of its students, and the duty owed to its students is co-extensive with the school’s physical custody and control over them” and that a school “generally cannot be held liable for injuries that occur off school property and beyond the orbit of its authority.  Here, “once the plaintiff left school premises, the defendant had no duty to supervise him off school premises after dismissal from school.”

The dissent opinion argued that the fact that an assault occurs outside the school does not relieve the school of its duty to provide adequate supervision to students as they are leaving the school premises, nor is it a license for school personnel to knowingly direct students off the school premises in the face of an immediate risk of harm.  This certainly seems like it was a close call and it will be interesting to see if it is pursued to the Court of Appeals.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

Public School District Found Liable For Private School Student Bullying (NY)

School seems more complicated than when I grew up.  We now have stalking, harassment, cyber-bullying, and myriad of other objectionable conduct.  Technology may be the engine of progress but, in an educational setting, it can also be used to harass, demean, and bully those students perceived to be weak or different.

To curb this objectionable conduct, New York enacted the Dignity for All Students Act (DASA) effective July 1, 2012.  This statute declares the policy of New York to “afford all students in public schools an environment free of discrimination and harassment.”

The statute is clear that it applies to public schools and their students.  Does the statute reach conduct targeting a former public school student who transferred to a private school because of past bullying behavior at the public school?  In other word, does the statute impose a duty on a public school district where the target of the misbehavior is now a student in a private school?

“Yes,” according to Simon v. Bellmore-Merrick Central High School District, et al.  In Simon, the minor plaintiff was allegedly bullied earlier in her academic career at the defendant’s school district.  She was transferred to another school within the district as part of the district’s earlier response and later transferred to a private school.    A few years later, two students of the district allegedly circulated a lewd video involving a female student and falsely represented that the female was the minor plaintiff.   The plaintiffs, both parents and minor daughter, alleged that the school district’s response was inadequate and such deficiencies contributed to the daughter’s distress.

In a case of first impression, the motion court found that the school district owed plaintiff a duty of care under DASA to prevent the subject harassment and cyber-bullying.  In the court’s view, the district’s interpretation of DASA – that it owed no duty to a private school student – would permit the district to “turn a blind eye” to malevolence perpetrated by its students where the target was private school student.  In sum, the court found that, under DASA, the district had a “duty to regulate” the conduct allegedly perpetrated by its students.  Of note, the court also held that the district had no common law duty of care to the plaintiff and dismissed plaintiffs’ negligence claims.

If you have any questions, please email Paul at pclark@wcmlaw.com.

Safety First: Pennsylvania Schools May Be Responsible for Students’ Criminal Acts

Recently, the Pennsylvania Superior Court held that a private college cannot escape civil liability for injuries caused by the criminal acts of its students where the institution voluntary assumed a “program of safety” that the community came to rely upon.

Specifically, in the case of Murray v. Albright College, student Patrick Murray was assaulted in the doorway of his dorm room after an authorized search of his floor mates’ dorm room revealed a loaded handgun, approximately one pound of marijuana, and surveillance equipment. Shortly after the search, which was conducted by Albright public safety officers, Murray began to receive threats from unknown individuals who suggested that he had “snitched” on his fellow students. The threats quickly turned to action when two unauthorized males were granted access to Patrick’s dorm by his floor mates, and brutally beat Murray.

In the lawsuit that followed against Albright, Murray and his parents contended that the college was liable for the criminal acts of its students to the extent that it failed to warn or prevent his attack. The trial court, however, disagreed with the Murrays’ contentions, and granted summary judgment to Albright on the basis that it could not reasonably foresee the criminal acts of its students.

On appeal, however, the Superior Court compared Murray’s residence on Albright’s campus to that of the relationship between landlord and tenant. Specifically, the Superior Court explained that, under Pennsylvania law, a landlord is not required to protect a tenant from criminal activity unless the landlord provides a “program of safety.” According to the Court, once a “program of safety” is deemed to exist, a landlord has voluntary assumed the duty to protect its tenant and is therefore exposed to liability for the criminal acts of third parties. Applied in the context of Murray’s attack, the Superior Court concluded that Albright’s student handbook required the college to report criminal violations such as the possession of marijuana to local authorities for prosecution. Given that Albright failed to adhere to this policy and did not involve the local authorities, the Court ultimately reversed, citing that a genuine issue of material fact existed as to whether the college’s omissions may have allowed the attacks to occur.

All told, the opinion in Murray speaks to the liability of landlords, generally, and educators, specifically, in respect of the criminal acts of third parties. As a result, both groups should remain mindful that, at least in Pennsylvania, the provision of additional safety measures may serve to increase, rather than detract from, a party’s ultimate exposure. As the saying goes, “no good deed goes unpunished.”

Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com.

“Sending” School District Not Liable For Death of Disabled Student (NY)

The educational environment in today’s schools has come a long way since the more traditional classrooms of the 1950s and 1960s where a premium was placed on memorization and good conduct. Recognizing that some students have different learning styles, physical needs or medical issues, school districts are now required to provide a free and appropriate education to all students including those with disabilities.

In light of this idealistic framework, what is the duty of care of a school district that contracts for special services with a private school as well as registered nurses who travel with and monitor a disabled student? Is the “sending” school district required to supervise the private “receiving” school or the nurses who provide monitoring services?

“No,” according to the Second Department in Begley v. The City of New York, The Forum School, et al. The facts of Begley are tragic. Jonathan Begley, age 9, suffered from asthma as well as allergies to a wide variety of food and substances. He was also diagnosed as autistic. When his local public school concluded that it could not meet his needs in district, it agreed to pay for a special school program at The Forum School as well as a registered nurse to monitor Jonathan on the bus to and from the school and during his school day. The nurses were found, interviewed and approved by Jonathan’s mother but paid by the New York Department of Education (“DOE”).  Jonathan went into anaphylactic shock while at school when he came into contact with an unknown allergen. His nurse initially gave him nebulizer treatment to assist his breathing and then a series of epi-pens when it was suspected that he was having an allergic reaction. 911 was called but, due to heavy call volume, EMTs did not arrive until 20 minutes later.

The Second Department examined whether the DOE, as the “sending” school district, had a duty of care to supervise Jonathan who was not in its physical custody, care or control while attending The Forum School. Emphasizing that the DOE’s duty of care flowed from the school’s physical custody of and control over its students, the court concluded that the DOE did not breach any duty of care to Jonathan. The Second Department noted that the case might have been decided differently if Jonathan’s IEP failed to alert the “receiving” school that he had numerous allergies or that he required nursing services for his asthma and allergies.

Although his death was tragic, the DOE had strong facts that established that it appropriately evaluated Jonathan, referred him to a special school, and paid for ancillary nursing services at great cost to the “sending” school district. As noted in the decision, “this is not a case in which the DOE failed to properly identify, in its IEP, the child’s special needs, and the services necessary to provide the child with an appropriate education.”

If you have any questions about this post, please contact Paul at pclark@wcmlaw.com