Negligent Supervision claims against schools

First off let me apologize for not updating the Tolmage Peskin blog last week. Sometimes our clients' needs leaves us no time to post.

I came across a decision in today's NY Law Journal, TZ v. City of New York, in which a female student sued her school after being sexually assaulted in class. The teacher was present in the class, but failed to notice, prevent, or stop the assault. In an unusual turn, the only claim against the school upheld by the Court and preserved for trial was the negligent supervision claim.

This is worthy of note because negligent supervision claims are difficult to win. You have to prove: (1) that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; or in other words that the third party's (usually another student) conduct could reasonably have been anticipated AND (2) that the conduct was of sufficient nature and duration such that school personnel could actually have stopped it.

What does this mean? Examples help. A school bus driver was not responsible for an assault right outside his bus. In that case, the bus driver had no notice that a fight was about to ensue. Even if he did, the Court ruled there was no way he would have been able to get out of his seat in time to break things up before the plaintiff was injured. In another example, a teacher was not responsible for a student’s injury when the student fell from a hay ride. The Court ruled that the teacher would have had no way to know a bump was coming up and even if she did, would have had no ability to grab the student to prevent the fall. A third example: a school was not responsible for an assault in a hallway because the assaulting student had no history of violent behavior (so the school wasn’t on notice). Even if the school was on notice, the assault was spontaneous lacking a preceding argument or buildup; a teacher in the hallway could never had reached the students in time to prevent the punches.

Lets contrast these losing cases with TZ. In TZ, there had been a several prior sexual assaults in the school. As such, the school was on notice that this type of behavior could and has occurred. Teachers should thus be on the lookout. Also the assault was in a classroom, all the teacher had to do was look up at the group of kids around plaintiff to know something was going on. The assault lasted somewhere between 5-7 minutes. The Court ruled that this was enough time for the teacher to go to that part of the classroom and stop the assault.
What does this mean? It means that if your child was randomly hit in the hallway or at recess, you probably don’t have a case against the school (you of course have a claim against the assaulting student). You really have to prove that the school knew the assaulting student had a history of violence or that the assaulting student was harassing/bullying your child. You also really have to prove that school personnel would have been in a position to stop the assault when it did occur. This high standard protects schools from law suits stemming from most types of school ground assaults.

Tolmage Peskin knows that with a negligent supervision case against a school, the devil is in the details. It is the sort of case that can be won given the right circumstances. Contacting a lawyer to go over the details and circumstances of your potential case is truly the only way to know whether you can bring negligent supervision claim.

-Matthew Lombardi, Associate Attorney