Doe v. Archbishop Stepinac High School

In an action, inter alia, to recover damages for assault and intentional and negligent infliction of emotional distress, the defendants Archbishop Stepinac High School and the Archdiocese of New York appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Cowhey, J.), entered September 8, 2000, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the causes of action to recover damages for intentional and negligent infliction of emotional distress insofar as asserted against the appellants, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The plaintiff, a student at the defendant Archbishop Stepinac High School, was allegedly assaulted by other students during a school-sponsored class trip to Europe. The appellants contend that the Supreme Court erred in denying their motion [479] to dismiss the complaint insofar as asserted against them because the plaintiffs claims are barred by a release that he and his parents signed in order to allow him to go on the trip. However, the appellants failed to submit any evidence that the plaintiff and his parents actually executed the release. In any event, the provision of the release upon which the appellants rely is unenforceable, because it does not clearly and unequivocally express the intention of the parties to relieve the appellants from liability for injuries sustained as the result of the appellants’ negligence (see, Gross v Sweet, 49 NY2d 102; Bar-one v St. Joseph’s Villa, 255 AD2d 973). Contrary to the appellants’ contention, we further find that the Supreme Court properly denied that branch of their motion which was for summary judgment dismissing the plaintiff’s cause of action based on negligent supervision. The affidavits submitted by the parties reveal an issue of fact as to whether the school authorities had sufficiently specific knowledge or notice of threats to harm the plaintiff during the trip which could have rendered the alleged acts of his assailants reasonably foreseeable (see, Mirand v City of New York, 84 NY2d 44, 49). The Supreme Court should have dismissed the cause of action to recover damages for intentional infliction of emotional distress insofar as asserted against the appellants. The conduct the appellants allegedly engaged in was not so outrageous and extreme as to go beyond all possible bounds of decency, and cannot be regarded as atrocious and intolerable in a civilized society (see, Howell v New York Post Co., 81 NY2d 115; Graham v Guilderland Cent. School Dist., 256 AD2d 863; Shea v Cornell Univ., 192 AD2d 857). Furthermore, the plaintiff’s cause of action for negligent infliction of emotional distress must also be dismissed insofar as asserted against the appellants, since there is no evidence that the conduct complained of unreasonably endangered the plaintiffs physical safety, or caused him to fear for his safety (see, Johnson v New York City Bd. of Educ., 270 AD2d 310; Perry v Valley Cottage Animal Hosp., 261 AD2d 522; Davies v County of Nassau, 260 AD2d 531). Krausman, J. P., Schmidt and Adams, JJ., concur.