Diaz v. Brentwood Union Free School District

141 A.D.3d 556, 36 N.Y.S.3d 161

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 2016
• Docket: 2014-06491
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated May 12, 2014, which granted the motion of the defendant Brentwood Union Free School District for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On July 14, 2009, at approximately 11:00 a.m., the plaintiff Shaquille Wilson (hereinafter the plaintiff), then 16 years old, allegedly sustained injuries when he was assaulted by members of a gang after being dismissed from summer school at Brentwood High School. The plaintiff, and his mother suing derivatively, commenced this action, inter alia, to recover damages for personal injuries against the defendant Brentwood Union Free School District (hereinafter the defendant), among others.

The defendant moved for summary judgment dismissing the complaint submitting, among other things, the plaintiff’s testimony from both the hearing held pursuant to General Municipal Law § 50-h and his deposition. The plaintiff testified at his deposition that, prior to the assault, he was leaving the school at dismissal time along with “[h]undreds” of kids, and that the school security guards were directing the students to leave the property. The plaintiff intended to walk to a restaurant with his friends to get something to eat. Prior to leaving the school grounds, the plaintiff noticed a group of six young men, whom the plaintiff thought were gang members, walking down the street toward the school, yelling “[w] here’s the Bloods around here?” At the General Municipal Law § 50-h hearing, the plaintiff testified that he “didn’t feel threatened” when he saw the group because he was not a member of a gang, “so [he] didn’t think they would mess with [him].” The plaintiff further testified that, while his friends stopped to converse with other students, he continued walking and was assaulted by the six young men after he left the school grounds. At his deposition, the plaintiff testified that, prior to the assault, he had attempted to return to the school campus, but the security guards prevented him from doing so. In the order appealed from, the Supreme Court granted the defendant’s motion.

“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’ ” (Maldonado v Tuckahoe Union Free School Dist., 30 AD3d 567, 568 [2006], quoting Morning v Riverhead Cent. School Dist., 27 AD3d 435, 436 [2006]; see Tarnaras v Farmingdale School Dist., 264 AD2d 391, 392 [1999]). “A school’s custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child’s protection” (Vernali v Harrison Cent. School Dist., 51 AD3d 782, 783 [2008]; see Pratt v Robinson, 39 NY2d 554, 560 [1976]). Thus, a school generally cannot be held liable for injuries that occur off school property and beyond the orbit of its authority (see Vernali v Harrison Cent. School Dist., 51 AD3d at 783; Stagg v City of New York, 39 AD3d 533, 534 [2007]; Bertrand v Board of Educ. of City of N.Y., 272 AD2d 355 [2000]; Tamaras v Farmingdale School Dist., 264 AD2d at 392; cf. Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 672 [1999]).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the assault occurred at a time when the plaintiff was not on school property and no longer in the defendant’s custody or under its control and was, thus, outside of the orbit of its authority (see Pistolese v William Floyd Union Free Dist., 69 AD3d 825, 827 [2010]; Vernali v Harrison Cent. School Dist., 51 AD3d at 783; Stagg v City of New York, 39 AD3d at 534). The defendant also demonstrated, prima facie, that the plaintiff was not released into a foreseeably hazardous setting that the defendant had a hand in creating (cf. Ernest v Red Cr. Cent. School Dist., 93 NY2d at 672).

We disagree with our dissenting colleague’s position that the defendant failed to establish that it provided adequate supervision, and that it was necessary for the defendant to submit affidavits from the school security guards in order to satisfy its initial burden. The plaintiff’s own testimony from the General Municipal Law § 50-h hearing, which the defendant submitted in support of its motion, reflects that the plaintiff did not feel threatened by the gang members and that he decided to leave school grounds. Schools “cannot reasonably be expected to continuously supervise and control all movements and activities of students” (Mirand v City of New York, 84 NY2d 44, 49 [1994]; see Goldschmidt v City of New York, 123 AD3d 1087, 1087 [2014]; Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 146 [2011]). The defendant demonstrated that the plaintiff departed safely from school premises prior to the assault. Once the plaintiff left school premises, the defendant had no duty to supervise him off school premises after dismissal from school {see Johnson v Rochester City Sch. Dist., 101 AD3d 1641, 1642 [2012]; Chalen v Glen Cove School Dist., 29 AD3d 508, 509 [2006]). Furthermore, the defendant established that it assumed no affirmative duty to protect the plaintiff outside of school premises (see Maldonado v Tuckahoe Union Free School Dist., 30 AD3d at 568).

In opposition to the defendant’s prima facie showing, the plaintiffs failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion merely raised what clearly appear to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony and his General Municipal Law § 50-h hearing testimony, and thus, was insufficient to defeat the defendant’s motion (see Bluth v Bias Yaakov Academy for Girls, 123 AD3d 866, 866 [2014]; Cuebas v City of Yonkers, 97 AD3d 779, 780 [2012]).

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.

Eng, P.J., Chambers and Roman, JJ., concur.