On April 6, 1984, the infant plaintiff, Fatima Bowles, was six years old and a kindergarten student at John Wayne Elementary School on Marcy Avenue in Brooklyn. On that date, during "rec time" in the back of the classroom, and while the teacher was absent, a fellow student, "Frank A.," threw a block that hit Fatima in the right eye, causing injury that necessitated surgery.

Neither party provides a history of this action, which, based upon the summons and complaint included among the City's motion papers, was apparently commenced originally in 1985. The only evidence submitted on the City's motion, seeking an order of dismissal, is the transcript of Ms. Bowles's examination before trial on April 27, 2006 - - that is, the testimony of a plaintiff who was six at the time of the occurrence at suit, recollected 22 years later. According to Plaintiffs' counsel, the deposition of the teacher was scheduled "on at least ten (10) [*2]occasions," but was cancelled each time by the City, until the City took the position that it could not produce her because she no longer worked for the Board of Education.

Ms. Bowles testified that the teacher, Ms. Zimmerman, had left the classroom to get two students who had gone to the bathroom and had been "in there for too long." (See Examination Before Trial of Fatima Bowles, Exhibit C to Affirmation in Support, at 16.) "Soon after" Ms. Zimmerman left the classroom, "maybe, two, three seconds after she was going out of the room" (id., at 23, 24), Frank A. threw the block from a distance of between 10 and 15 feet (id., at 18.)

Although there had been no interaction between Ms. Bowles and Frank A. "immediately prior" to his throwing the block (id., at 21), she had had "problems" with him before (id., at 22.) He would "pick on" her, "pull [her] hair, push [her], bully [her]," "hit [ ] her" (id.) There were "numerous parent / teacher meetings," including Ms. Bowles, Frank A., her parents and his parents, and Ms. Zimmerman (id., at 22-23.) "[T]he principal, everyone was aware that Frankie was a bully to [Ms. Bowles]." (Id., at 22.) Frank A. was suspended "a few times" for incidents with other students, but not for anything he had done to Ms. Bowles. (Id., at 36-37.) Prior to the injury-producing incident, Ms. Bowles had not seen Frank A. "throw blocks across a classroom." (Id. at 36.)

On this motion, the City relies on a line of cases that are grounded in the Court of Appeals decisions in Ohman v Board of Education (300 NY 306 [1949]) and Mirand v City of New York (84 NY2d 44 [1994].) As summarized by a recent Second Department decision:

" Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision' . . . To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficiently specific knowledge or notice of the dangerous conduct and that the alleged breach was the proximate cause of the injuries sustained' . . Moreover, when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'." (Ronan v School District of the City of New Rochelle, 35 AD3d 429, 430 [2d Dept 2006] [quoting Mirand v City of New York, 84 NY2d at 49; Nocilla v Middle Country Cent. School Dist., 302 AD2d 573, 573 (2d Dept 2003); Convey v City of Rye School Dist., 271 AD2d 154, 160 (2d Dept 2000)].)

The articulated standard of care is that exercised by "a parent of ordinary prudence . . . in comparable circumstances." (Mirand v City of New York, 84 NY2d at 49 [quoting Hoose v Drumm, 281 NY 54, 57-58 (1939)].) But "New York courts have not hesitated to grant summary judgment to school districts in cases where the district makes a prima facie showing of lack of notice and /or proximate cause and plaintiff fails to come forward with factual evidence to the contrary." (Smith v Half Hollow Hills Central School District, 349 F Supp 2d 521, 525 [EDNY 2004].) Although "[t]he question of notice and the proper standard of care are two different questions" (Weston v City of New York, 282 AD2d 525, 527 [2d Dept 2001]), most of the [*3]decisions turn on "lack of notice and /or proximate cause," without distinct application of the standard of care, and, as will appear, the relationship between "lack of notice and /or proximate cause" is not entirely clear.

Before there can be liability for a breach of duty to provide adequate supervision, there must be such "[a]ctual or constructive notice to the school of prior similar conduct . . . that would have put a reasonable person on notice to protect against the injury causing act." (See Mirand v City of New York, 84 NY2d at 49-50.) A duty to protect from the "sudden, spontaneous" act, the "impulsive, unanticipated" act, of a fellow student will exist commensurate with notice of "prior similar conduct." (See id.)

As with negligence generally, case comparisons on school liability prove difficult because of the necessarily controlling significance of context and circumstance. The Court notes, for example, that all of the cases on which the City relies, and in which no possibility of liability was found to exist, involved students in upper grades. (See Van Leunan v Rondout Valley School District, 20 AD3d 645 [3d Dept 2005] [seventh grade]; Smith v East Ramapo Central School District, 293 AD2d 521 [2d Dept 2002] [unspecified age or grade but school parking lot]; Velez v Freeport Union Free School District, 292 AD2d 595 [2d Dept 2002] [junior high school]; Janukajtis v Fallon, 284 AD2d 428 [2d Dept 2001] [14 years old]; Convey v City of Rye School District, 271 AD2d 154 [2d Dept 2000] [16 years old]; Brown v Board of Education of the Glen Cove Public Schools, 267 AD2d 267 [2d Dept 1999] [high school]; Malik v Greater Johnstown Enlarged School District, 248 AD2d 774 [3d Dept 1998] [high school]; Hauser v North Rockland Central School District No. 1, 166 AD2d 553 [2d Dept 1990] [sixth grade].)

There has been explicit recognition that ordinary prudence will require more from the school acting in the place of the parents of younger students. In Garcia v City of New York, (222 AD2d 192 [1st Dept 1996]), the First Department would not say that a school performed in a reasonably prudent manner when it sent a five-year-old kindergarten student alone to the bathroom where he was sexually assaulted by an older student (see id., at 196-97), even though "the school had no notice of any similar incidents or of any prior dangerous conduct by the alleged assailant" (see id., at 195.) "[H]igh school students . . . , for a myriad of reasons, cannot be so closely guarded so as to prevent an attack by one student against another." (See id., at 195-96.) "[E]ven the most prudent parent will not guard his or her teen at every moment in the absence of some foreseeable danger of which he or she has notice." (See id., at 196; see also Oliverio v Lawrence Public Schools, 23 AD3d 633 [2d Dept 2005] [six years old, first-grader]; Rivera v Board of Education of Yonkers, 19 AD3d 394 [almost six years old, first-grader].)

Indeed, this Court's research has revealed no case involving an infant plaintiff younger than ten, who was injured by another student, in which the court concluded that the school could not be liable for the injury. The single case found, involving a ten year old struck in the eye by a goldenrod stalk thrown by another student, was decided by the Court of Appeals in 1939, at a time when school districts were not liable for the negligence of their teachers. (See Hoose v Drumm, 281 NY 54, 58 [1939].) The school would not be required "to fashion guides for the [*4]safe conduct of pupils in the indulgence of their boundless instincts for self-amusement." (See id., at 57.)

In assessing whether there has been actual or constructive notice of "prior similar conduct" (see Mirand v City of New York, 84 NY2d at 84-50), "prior, unrelated incidents resulting in discipline are insufficient to put a school on notice of a specific threat of danger requiring supervision." (See Smith v Half Hollow Hills Central School District, 349 F Supp 2d at 525; see also Janukajtis v Fallon, 284 AD2d at 430.) The decisions stress the absence of violence in the prior conduct (see Sanzo v Solvay Union Free School District, 299 AD2d 878, 878-79 [4th Dept 2002]; Brown v Board of Education of the Glen Cove Public Schools, 267 AD2d at 268; McLoughlin v Holy Cross High School, 135 AD2d 513, 514 [2d Dept 1987]; or, if there was notice of prior violence, it was a single incident remote in time (see Morman v Ossining Union Free School District, 297 AD2d 788, 789 [2d Dept 2002]; Velez v Freeport Union School District, 292 AD2d at 596), and "of a dissimilar nature" (id.; see also Malik v Greater Johnstown Enlarged School District, 248 AD2d at 776.)

Where, however, there is notice of "reckless and aggressive" behavior, similarity of the injury producing act is not always required. (See Doe v Fulton School District, 35 AD3d 1194, 1194-95 [4th Dept 2006] ["absence of notice of prior sexual assault"].) And sufficient notice will be found where there is a history of physical assault, threats or other aggressive behavior by the offending student against the victim. (See Wilson v Vestal Central School District, 34 AD3d 999, 1000 [3d Dept 2006] ["bullying"]; McLoed v City of New York, 32 AD3d 907, 908 [2d Dept 2006]; Druba v East Greenbush Central School District, 289 AD2d 767, 768 [3d Dept 2001]; Shante D. v City of New York, 190 AD2d 356, 359 [1st Dept 1993] ["bullying"]; see also Convey v City of Rye School District, 271 AD2d at 160; Brown v Board of Education of the Glen Cove Public Schools, 267 AD2d at 268.)

Based upon Ms. Bowles's deposition testimony, which is the only evidentiary basis for the City's motion, the Court has little difficulty concluding that the City has failed to establish prima facie that it did not breach a duty to protect this kindergarten student from the continuing physical bullying of fellow student Frank A., which had been previously made known to the school by Ms. Bowles's parents. The City's contention that, because "[t]he prior incidents involved plaintiff's assailant pushing her and pulling her hair" and "did not involve the throwing of objects across the classroom," they cannot serve to establish the requisite notice to the school (see Affirmation in Support, ¶ 33) is not supported by the caselaw. Indeed, it is not supported by the single authority that the City cites for that purpose. (See Convey v City of Rye School District, 271 AD2d at 160 ["Neither boy had a history of prior disciplinary problems, and there had been no prior altercations between them"].)

The City contends, nonetheless, that summary judgment is appropriate because "the injury at issue was caused by the impulsive, spontaneous act of another student, which even the most intense supervision could not have prevented," and, "[i]n such instances, the appellate courts have deemed the issue of prior notice immaterial because any negligent supervision was not the proximate cause of the injury." (See id., ¶ 34.) Although it is correct that many of the [*5]cases relied upon by the City, as well as others, will rest on both an absence of sufficient notice and a lack of proximate cause, the City's statement of the significance of that authority is not correct.

The alternative holding in many decisions of lack of proximate cause has its genesis in Ohman v Board of Education of the City of New York (300 NY 306), where a 13 year-old student was struck in the eye by a pencil thrown by a classmate while the teacher was "temporarily absent from the classroom" (see id., at 308.) Noting that there was "no proof of similar incidents" (see id., at 310), the court characterized the thrown pencil as an "unforeseen act" (see id., at 309.) "Whether [the pencil was thrown] mischievously and heedlessly or wantonly and willfully, or with the serious purpose or returning the pencil to its owner, it was the act of an intervening third party which under the circumstances could hardly have been anticipated in the reasonable exercise of the teacher's legal duty toward the plaintiff." (Id., at 309.)

Because in Ohman there was a lack of "proof of similar accidents" (see id., at 310), it provides limited authority for cases in which a breach of duty is based upon a finding of sufficient notice. A more appropriate starting point for our case would be Mirand v City of New York (84 NY2d 44), in which the court held that a jury could conclude that the school "was on notice of an imminent danger to [the plaintiff] and did nothing reasonably calculated to protect her from that danger" (see id., at 50.) The court stated the proximate cause test as "whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence" (see id.), and held that a jury "could find that the complete absence of security or supervisory personnel at a time and place when vigilance was absolutely essential constituted the proximate cause of plaintiffs' injuries" (see id., at 51.)

The City has not cited, and the Court has not found, any case in which the court found sufficient notice as a basis for a breach of duty and also found a lack of proximate cause. The most that can be said, as noted above, is that courts will state alternate holdings of lack of notice and lack of proximate case, or will "assume" lack of notice and then also find a lack of proximate cause. (See Van Leuvan v Rondout Valley Central School District, 20 AD3d at 646; Sanzo v Solvay Union Free School District, 299 AD2d at 879; Velez v Freeport Union Free School District, 292 AD2d at 596; Janukajtis v Fallon, 284 AD2d at 430; Convey v City of Rye School District, 271 AD2d at 159-60.)

These decisions might suggest that the school's breach of duty cannot be the proximate cause of an act that is "sudden," "spontaneous," or "impulsive." But other decisions show that such a conclusion is overbroad, if not simplistic. (See Wilson v Vestal Central School District, 34 AD3d at 1000-01; Druba v Greenbush Central School District, 289 AD2d at 768; Alferoff v Casagrande, 122 AD2d 183, 184 [2d Dept 1986]; Gonzalez v Mackler, 19 AD2d 229, 231 [1st Dept 1963].)

As the Third Department recently explained: "While the actual assault happened quickly, the same could be said of nearly any case involving an assault. The issue is not the [*6]speed of the punch, but the circumstances leading up to and surrounding that conduct." (Wood v Watervliet City School District, 30 AD3d 663, 665 [3d Dept 2006].) And the lower appellate court in Mirand v City of New York (190 AD2d 282 [1st Dept 1993], aff'd 84 NY2d 44 [1994]) stated, "since the school had sufficient notice, those cases in which it has been held that the plaintiff's injuries were caused by a sudden precipitous act which could not realistically have been anticipated or prevented are not applicable here" (id., at 290.)

The City has failed to establish prima facie that any breach of duty was not the proximate cause of Ms. Bowles's injury. If the Court had any doubt about its conclusion on this issue or the question of breach of duty, it would be resolved by the City's failure to produce the teacher for examination before trial.

The City's motion for dismissal is denied.

March 27, 2007_________________

Jack M. Battaglia

Justice, Supreme Court