This is the decision following the trial of Carolyn Zingale's claim arising from her March 21, 2013 injury at PS 23Q, where she taught middle school. PS 23Q is part of the New York City Children's Center in Queens, which in turn is a facility of the New York State Office of Mental Health (OMH).

Dr. Jessica Brito, a clinical psychologist who directed a treatment team at the Children's Center, explained its operations when she testified at trial. The Center includes an outpatient clinic and other day treatment programs. PS 23Q teaches only students who return home at the end of the school day.

Dr. Brito testified that "the children that we get [at the school ] are really severe[ly] emotionally disturbed and have failed in multiple places." Brito added that the center is unique in that everything is provided on site - - the OMH staff includes psychologists, psychiatric social workers, nurses, mental health therapy aides and security officers.

OMH personnel coordinated with those of the school, who are employees of the Department of Education of the City of New York. These included a principal, at least one assistant principal, teachers and para-professionals. Simply put, the children receive teaching and treatment; the two functions are mutually supportive. Assistant Principal Pamela Hicks explained that, "we're one school but we have elementary, middle school and high school students."

PS 23Q is housed in what is known as the community services building.^[FN1] The entrance from the outside opens into a spacious lobby area, with a countertop desk to be staffed by a security officer from OMH. Doors from the lobby lead to at least two corridors or hallways, one of which goes to PS 23Q. Ms. Zingale testified that there were usually three mental health therapy aides (MHTA's) who were responsible for monitoring the students' behavior in what was known as the middle school hallway.

All the doors were locked: the door to the outside entrance and those between the corridors and the lobby. Further, they were locked from both sides: if a student was in the lobby, he or she could not exit the building or return down a corridor without a teacher or a therapy aide who would have an access card or key.

At about 1:45 p.m., Ms. Zingale walked from her classroom into the middle school hallway on her way to the lobby. She had intended to go through the lobby, down another corridor and then to the gym to collect her students because the period was ending. The gym corridor also had three classrooms.

In the middle school hallway, she encountered two students (two girls or young women), Ms. K.P. and Ms. D.C. According to Zingale: "[They] had been there for quite a long time, yelling, screaming, kicking the walls, banging on the glass wall as well as the glass door, trying to pull down bulletin boards. They were really wild and out of control." Claimant added that they were so noisy that she had been able to hear them from inside her classroom.

Claimant recalled that she stopped and tried to speak with the two students to get them to "de-escalate their behavior" and explained that she needed to go through the corridor so she could pick up her students from the gym. That was unsuccessful, and claimant called out for assistance toward the end of the hallway - - "There were MHTA's sitting there."

No one responded, and "then the next thing you know I was on the floor. I was knocked down." She looked up from the floor and saw standing above or by her: assistant principal Pamela Hicks, and therapy aides Pauline Shaw and Rebecca Loiseau, each of whom we heard from at trial. According to claimant, Ms. Loiseau said, "I'm really sorry I didn't see you," and then "She came back to my room later, somewhat later while I was writing out the forms and apologized again."

Assistant Principal Hicks testified that Loiseau had been given the task of escorting a third student, Ms. I.P., into the lobby and then out the front door to a waiting vehicle that would take her home. Ms. Hicks said that she and Loiseau had been in the lobby, Zingale was on the other side of the glass door in the middle school corridor. Then Hicks and Loiseau walked toward the door with the intention of letting claimant come through into the lobby, while preventing the girls from doing so. Hicks described the girls as "rowdy. They were yelling. They wanted to come through." They wanted " To be with their friend [I.P.], who was going home."

Hicks and Loiseau approached the glass door together in such a way that the former did not know whose access card triggered the door. Then, "The door opened, Rebecca jumped in on [*2]the other side and slammed the door." Hicks added that Loiseau went through very quickly and "collided" with Zingale causing her to fall backwards. The contact had taken place on the middle school side of the door.

The assistant principal gave a signed statement, which read:

Generally, Hicks explained that when students' behavior was disruptive, the teacher would contact a therapy aide and the aide would come and remove them from the classroom, or if in the hallway, ask them to come to one of the "calming rooms."^[FN2]

Ms. Shaw, who as noted was a mental health therapy aide at the time, testified that she had a view of the incident because she was halfway down the hall near the calming room, or four or five classrooms away from the lobby. Shaw had a student with her; Zingale was at the door on the school side as were the two girls [K.P. and D.C.].

By that time, Ms. Shaw thought the two had been out in the hallway for about an hour. At one point, Shaw testified that the two students had been disruptive all day, but then concluded that she did not think their behavior needed intervention: they were not hurting anyone, or pushing on the door; "They were just standing there, laughing."

Shaw could not leave the student she was with because she was supervising her on a one-to-one basis. Shaw described Zingale as right next to the two students before Shaw heard the buzz of an access card opening the door, which drew her attention down the hall. She heard Zingale say, while looking toward her, "I need help."

Ms. Shaw walked her student back into the classroom and then started down the hall, although she did not have an unobstructed view because "kids [were] moving from class to get ready for dismissal so it was chaos, there [were] a lot of kids in the hallway returning to class and getting their things and going to the bathroom." Shaw did not see what caused Zingale to fall, nor hear any conversation between Loiseau and Zingale.

Ms. Loiseau had been a therapy aide for nine years as of the date of the incident. She described her day-to-day duties in 2013 as "talking to the children, keeping them calm if they were upset, relaying messages to therapists or doctors if they needed to talk to someone . . . helping them transition throughout the day from class to class."

Loiseau testified that she was leaving the middle school hallway with I.P., who had been having a "rough day" and arguing loudly; the therapists and doctors determined that she should go home a little early. The aide and student went through the locked door into the lobby and "the door closed behind me and then the door reopened behind me and I closed the door. When I closed the door I saw the children jump back and that's what knocked her over . . . The children backed into her." Loiseau had wanted to be sure to close the door because there were no therapy aides to stay with the two if they went into the lobby.

Ms. Loiseau indicated that she did not go back through the door until she saw Zingale fall, then returned to the middle school side and "asked her if she was okay and offered to help her up." Loiseau said she did not have a conversation with claimant and did not apologize then [*3]or later.

Each of the witnesses we heard from were experienced, dedicated and patient at working with children who were more boisterous than most. That something like an unintentional bump or collision could occur from time to time would not seem to be unexpected.

With that said, some basic factors should be borne in mind:

On the stand, Ms. Loiseau came across as a dedicated professional. But at this moment in the afternoon of March 21, 2013, she tried to do two things at once - - escort one student out of the building and contain two others in the school hallway, and did so in a way that violated the standard of care - - being more physical than verbal with the foreseeable result that contact would occur. Loiseau departed from the standard of care and such proximately caused Zingale to fall.

Ms. Hicks agreed with claimant that Loiseau bumped into the girls who then knocked down claimant. Loiseau stated that the contact was between the two girls and claimant. There is more support in the record for the former's view of events; however, either would satisfy proximate cause. Loiseau's version is not a "but for" chain of events; in any event, it would have been a substantial factor in bringing about claimant's fall. Ms. Loiseau and therefore the defendant State of New York bears responsibility for the accident.

But claimant must be held accountable as well. Ms. Zingale understood that security in the hallway was the responsibility of the therapy aides. By claimant's own testimony, K.P. and D.C. were so obstreperous that she had heard them from her classroom. At the glass door, she had to be aware or should have been aware that there was no security guard in the lobby.

Claimant positioned herself too close to K.P. and D.C. at the door. Zingale was intending to pick up her class from an area that required her to go through the lobby, but this otherwise admirable focus made her less aware of what was happening in her immediate surroundings. The Court therefore finds claimant one -third negligent.

Such result is not trumped by immunity. The Court is unpersuaded by defendant's cite of Shurdhani v State of New York, UID No. 2012-032-009 [Ct Cl, Hard, J., Jan 11, 2013], which involved a physical encounter at a facility of the State Division for Youth. See Schrempf v State of New York, 66 NY2d 289, 294 (1985).

The Court finds the defendant State of New York two-thirds (66 2/3%) liable for the fall of Carolyn Zingale on March 21, 2013 and any resulting injury therefrom. A trial on damages will be scheduled by Chambers.

ALAN C. MARIN