Teacher recovers vs. DOE for Personal Injury
This post published by Professor Mitchell Rubenstein of St John’s University School of Law appeared in his Adjunct Professor Law Blog:
Rare Personal Injury Verdict In Favor of Teacher Against Board of Education
It is very difficult for a teacher to recover for personal injuries against the Board of Education because of student violence. The Board is only liable if it assumed a “special duty.” Dinardo v. Board of Education, ___A.D.3d___(1st Dept. Dec. 23, 2008), is one of those rare cases where a special duty was found because the Board sought to protect this teacher from the student due to the previous violence inflicted by this very same student. As the court stated:
Although no express promise was made to plaintiff by any agents of the Board, there is no requirement that the promise to protect be explicit (see Bloom v City of New York, 123 AD2d 594, 595 [1986]). In this regard, we note in particular that plaintiff testified that her supervisor told her to “hang in there because something was being done to have [the student] placed or removed.” The dissent posits that plaintiff could not have been lulled into a false sense of security by being told something was being done and by the initiation of a Type 3 referral, especially since she knew it could take up to 60 days to process such a referral. The jury, however, had a rational basis for finding that plaintiff justifiably relied on the Board’s affirmative undertaking, given the assurances she received from her local administrators. For instance, plaintiff told the principal, the assistant principal and her direct supervisor that the situation was getting more impossible, that she wanted to quit, that it was getting unsafe, and that she was concerned about safety in the classroom; in response she was told that “things were being worked on, things were happening [suggesting an imminent solution], . . . and to hang in there.” In addition, while the Type 3 referral was pending, the principal intervened by writing a letter to the District 10 supervisor of special education, “urgently requesting an alternative site” for the student.
We reject the Board’s argument that plaintiff’s claim fails because it is premised on the Board’s alleged negligence in the placement and transfer of a student. This is a function carried out in accordance with educational policy, the responsibility for which lies within the professional judgment and discretion of those charged with the administration of the public schools (see e.g. Brady v Board of Educ. of City of N.Y., 197 AD2d 655 [1993]). The evidence demonstrates that agents of the Board began the process of transferring the offending student out of plaintiff’s class, and contrary to the Board’s contention, the gravamen of plaintiff’s negligence claim was that her supervisor and other school administrators failed to follow through with the transfer request in a timely fashion. Furthermore, the Board’s argument that it cannot be held liable because its agents had no knowledge of prior threats or violence committed by the student who attacked plaintiff, or that she feared for her safety, is belied by the evidence that the Board’s agents were aware of the student’s aggressive tendencies and that plaintiff indeed feared for her safety in the classroom.
Mitchell H. Rubinstein
January 25, 2009 in Education Law
Tags: personal injury