Stephenson v. City of New York

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 11, 2009, which denied defendants’ motion for summary judgment dismissing the complaint and granted plaintiffs’ cross motion for summary judgment on the issue of liability, reversed, on the law, without costs, defendants’ motion granted and plaintiffs’ denied. The Clerk is directed to enter judgment dismissing the complaint. The issue before us is whether defendants, who are deemed to have had prior notice of an assault on the almost 14-year-old plaintiff Jayvaun Stephenson, are liable for negligently failing to prevent the assault. On October 22, 2003, Stephenson, a student at Middle School 113 in the Bronx, and Lorenzo McDonald, a fellow student, had a fistfight on the school grounds, during which McDonald punched Stephenson once in the face and Stephenson punched McDonald twice. Neither boy was significantly injured. School authorities punished Stephenson with a one-day, in-school suspension, and McDonald, who was found to have started the incident, received a one- to two-week suspension. The school also dismissed Stephenson that day and directed him to go straight home so that he would not encounter McDonald again that day. Upon arriving at home, Stephenson [524] did not tell his mother or grandmother, with whom he lived, about the fight with McDonald. The next day, October 23, Stephenson served his one-day suspension and was still on school grounds when he encountered McDonald, who told Stephenson he was “going to get [Stephenson] jumped.” Again, Stephenson did not tell his mother or grandmother about this threat; nor did he report it to school authorities. Before school began on the morning of October 24, Stephenson exited a subway station approximately two blocks from the school and saw McDonald across the street. Stephenson entered a store, from which three accomplices of McDonald pulled Stephenson outside to the street where McDonald was waiting. While two accomplices held Stephenson’s hands behind his back, McDonald and the third accomplice repeatedly punched Stephenson in the face for several minutes and fractured his jaw in two places. Plaintiffs commenced this personal injury action in April 2004, alleging that the October 24 assault was a continuation of the October 22 fistfight and that defendants were negligent in failing to take action to prevent the assault by notifying Stephenson’s mother about the fistfight. In an affidavit, the mother stated that, if the school had notified her about the fight, she would have asked to meet with the school and McDonald’s parents to iron out the differences between the two boys, and would have either kept Stephenson at home or had him escorted to school until “the problem had apparently been resolved.” After a series of discovery disputes between the parties, plaintiffs moved for an order striking the answer for defendants’ repeated failure to comply with orders directing them to produce school records about the October 22 incident. In a December 2008 order that was not appealed, the motion court granted plaintiffs’ motion to the extent of sanctioning defendants by ruling that “the issue of prior notice to the defendants of the October 24, 2003 incident is resolved in [plaintiffs’] favor and defendants are precluded from raising any issue with respect thereto.” In the order on appeal, the motion court premised its grant of partial summary judgment to plaintiffs on its sanction in the December 2008 order. As the court viewed the matter, since its prior ruling meant that “defendants were on notice of the previous [October 22] assault [and] the threat to [Stephenson], as well as . . . [McDonald’s] history of violence,” the school was on notice of the October 24 assault and, contrary to defendants’ position, the assault was foreseeable. The court acknowledged [525] that a school normally has no duty of care to a student injured off school grounds (see e.g. Norton v Canandaigua City School Dist., 208 AD2d 282, 285 [1995], lv denied 85 NY2d 812 [1995]), but found that, while Stephenson was in the school’s custody on October 22, the school breached its duty to notify his mother about the fistfight. By breaching this duty, the court concluded, the school “failed to prevent a further escalation of the incident” and accordingly was liable for Stephenson’s injuries. We find no liability on defendants’ part, despite the motion court’s sanction ruling. Contrary to the dissent’s contention, the mother’s claim that she could have prevented the assault is entirely speculative. McDonald could have attacked Stephenson at any time, possibly weeks later, or at any place, and the mother’s presence would not necessarily have been a deterrent to what after all was a targeted attack. The suggestion that McDonald’s planned criminal assault upon Stephenson would have been prevented by his mother’s accompanying her almost 14-year-old son to school every day does not rise above speculation. Nor does the notion that the attack would have been prevented by the juvenile authorities if the mother had known of the fight seem any more realistic. Fights among middle school students occur frequently, the school did not see a basis to contact the juvenile authorities based on what happened on October 22, and it is not reasonable to believe that the juvenile authorities would have intervened. This seems particularly so where the school had already taken disciplinary action, including suspension, against the perpetrator. Finally, we find it unreasonable to impose a duty on the school to notify a parent about a fight between two students when the school has already affirmatively addressed the misconduct. In Matter of Kimberly S.M. v Bradford Cent. School (226 AD2d 85 [1996]), cited by the dissent, the Court found that a teacher who had been notified by a child of sexual abuse had no common-law duty to inform the parents because the abuse took place outside of school. Although here the first fight occurred on school grounds, as in Kimberly, the risk of danger arose from potential conduct away from school by a third party, not from anything the school did or failed to do. Similarly, in Anglero v New York City Bd. of Educ. (2 NY3d 784 [2004]), also cited by the dissent, the duty imposed upon the school derived from its failure to stop an assault on school premises that led to a further assault shortly afterward off school grounds. All the other cases cited by the dissent involve failure to act on the part of school officials with respect to students in the custody of the school. Concur — Friedman, DeGrasse and Freedman, JJ.