In Emmanuel B. v. City of New York, 2015 NY Slip Op 06750 (App. Div. 1st Dept. Sept. 8, 2015), the First Department affirmed the dismissal of plaintiff’s complaint seeking damages for personal injuries sustained in an alleged school bullying incident.
Here are the facts of this personal injury case, as summarized by the court:
The infant plaintiff alleges that, when he was a seven-year-old second-grade student at a New York City public school, he suffered serious physical injuries as the result of an altercation in which a classmate (hereinafter, WEM) caused him to strike his head against a bookcase. Earlier on the day of the incident, plaintiff had informed his teacher that WEM was picking on him and calling him names. At the end of the school day, when students were lining up to go home, plaintiff and WEM exchanged words, and WEM pushed plaintiff into a desk. Plaintiff pushed back, and WEM pushed him again, causing plaintiff to fall back into a bookcase. …
Plaintiff testified that other boys in his class, including WEM, had been teasing him during the school year, but he made no claim that WEM had physically attacked him before the subject incident. Also before the subject incident, plaintiff’s mother complained to the principal that several boys had been bullying her son, but she did not identify the offenders by name.
In affirming the grant of defendants’ motion for summary judgment, the court explained:
Initially, while “schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302  [internal quotation marks omitted]), “unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school’s liability in negligence absent actual or constructive notice of prior similar conduct” (id.). Here, the record contains no evidence that the school had notice that WEM had a proclivity to engage in physically aggressive conduct. The evidence that plaintiff had complained to his teacher and others that WEM was “picking on him” and calling him names, and that his mother had called the principal’s office and reported that some unidentified boys were “picking on her son,” when viewed in the light most favorable to plaintiff, shows only that the school knew that WEM had been picking on plaintiff verbally. Knowledge of such taunting, however, did not give the school “sufficiently specific knowledge or notice” of “prior conduct similar to the unanticipated injury-causing act” by WEM to support a finding of actual or constructive notice of the risk that he would engage in violent or physically aggressive behavior against plaintiff.
The court further held that summary judgment was “also warranted because plaintiff has not raised an issue as to proximate causation”, reasoning:
There is no non-speculative basis for finding that any greater level of supervision than was provided would have prevented the sudden and spontaneous altercation between the two students. Schools are not insurers of safety and cannot reasonably be expected to continuously supervise and control all movements and activities of students.