This matter comes before the Court on the motion of defendant Schalmont Central School District ("Defendant") seeking summary judgment dismissing the Complaint in this action. Plaintiffs have opposed. This action arises from an incident between two students that took place in a school cafeteria and allegedly resulted in defendant S.M.D. assaulting plaintiff J.C.F. Plaintiffs assert two claims against Defendant, sounding in negligent supervision and violation of the Dignity for All Students Act ("DASA").

Negligent Supervision. Defendant makes two related arguments. Defendant first argues that the escalation of an existing dispute between the two students into violence was unanticipated, and that Defendant had no prior knowledge or forewarning of the assault, so that S.M.D.'s alleged conduct was not reasonably foreseeable. Defendant also points to the sudden nature of the assault to argue that any negligence on the part of its personnel was not the proximate cause of J.C.F.'s injuries.

The parties cite a number of cases on the somewhat related questions of foreseeability and proximate cause in negligent supervision cases. On the question of foreseeability, liability can be imposed on a school district unless "a plaintiff can show, usually by virtue of the school's prior knowledge or notice of the dangerous conduct which caused the injury, that the acts of the fellow student could reasonably have been anticipated" (Busby v. Ticonderoga Cent. School Dist., 258 AD2d 762, 764 [3d Dept 1999] [internal quotation marks and citations omitted]). On the question of proximate cause, the test is whether, under all the circumstances presented, "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" (MacCormack v. Hudson City School Dist. Bd. of Educ., 51 AD3d 1121, 1122 [3d Dept 2008] [internal quotation marks and [*2]citation omitted]). Foreseeability, then, is a central element of both tests.

In contrast to cases like the Busby and MacCormack, Plaintiffs here argue that the school district was alerted to physical threats by S.M.D. days or even weeks before the incident. J.C.F. testified that she met with the assistant principal on several occasions over the course of at least two weeks prior to the subject incident, during which she reported that S.M.D. had been shoving and poking her. She also testified that she relayed her fear of S.M.D. and what she might do in the future. J.C.F. further testified about an incident in the school hallway—which was witnessed by a hall monitor—during which S.M.D. threatened to fight her.

J.C.F.'s mother testified that she met with the assistant principal twice and also telephoned him to express her concerns, the first meeting having taken place approximately two weeks prior to the assault. She testified that during the second meeting, which took place four days after the first meeting, she informed the assistant principal that S.M.D. had made threats of physical violence against her daughter. During her final telephone conversation, which occurred on the Friday before the assault, she requested that the two students be scheduled for different lunchrooms, and while the assistant principal declined to do so, he assured her that he would be present with J.C.F. during lunch on the ensuing Monday. According to J.C.F.'s mother, when she arrived at the school after the incident, the assistant principal apologized to her and stated that he had been waylaid by another student in the hallway of the school and therefore was not in the cafeteria at the time of the assault.

Plaintiffs also point to the deposition testimony of S.M.D., who testified that she informed school officials she was being bullied by J.C.F. S.M.D. testified that she complained to the assistant principal, her guidance counselor and the hall monitor several times. She also testified that there was a lack of action on the part of the school in response to her complaints.

On the other hand, the assistant principal testified that he did not recall most of the conversations that J.C.F. and her mother described. He recalled an initial conversation with J.C.F., and a separate conversation with her mother, about an incident during a sleepover that sparked ill will between the two students. Beyond that, he could not recall any further discussions with either person and denied any knowledge of the incident in the hallway between S.M.D. and J.C.F. or any threats made by S.M.D. against J.C.F.

Foreseeability and proximate cause are both generally considered fact questions for a jury to determine (see Wood v. Watervliet City School Dist., 30 AD3d 663 [3d Dept 2006]). Here, the record contains different versions of the facts given by the students involved, by the mother of J.C.F. and by the assistant principal. This calls for credibility determinations that are best made by the finder of fact and are not appropriate on a summary judgment motion (Hall v. Queensbury Union Free School Dist., 147 AD3d 1249 [3d Dept 2017]). Also, viewing the evidence in a light most favorable to Plaintiffs as the non-moving parties, there are questions as to whether the school district had actual and/or constructive notice of the brewing altercation. Likewise, there is a fact question as to whether Defendant's alleged failure to separate the students and to accompany J.C.F. during the lunch period were the proximate cause of the alleged assault.

DASA. Defendant also argues that DASA does not create a private right of civil action for violation of its terms. In their response, Plaintiffs simply acknowledge this to be true.

The parties' remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of all the foregoing, it is hereby

ORDERED, that the motion by defendant Schalmont Central School District seeking [*3]summary judgment dismissing the Complaint against it is granted in part, and the Complaint, insofar as it asserts a separate cause of action against defendant Schalmont for violation of the Dignity for All Students Act, is dismissed; and it is further

ORDERED, that the motion by defendant Schalmont is denied in all other respects.

Notice of Motion; Affirmation of Christopher K. Mills, Esq., with annexed exhibits; Memorandum of Law; Affirmation of John R. Seebold, Esq.; Memorandum of Law