Summary
In Vitale v City of New York (60 N.Y.2d 861, supra), the Court of Appeals determined that an industrial arts teachers at a junior high school, who was assaulted by a student as he sought to break up an altercation in the hallway of the school, was not owed a special duty by the Board of Education when it promulgated a detailed security plan.
Summary of this case from Pascarella v. City of N.YOpinion
Argued October 17, 1983
Decided November 22, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, SIDNEY H. ROSEN, J.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Michael Gage and Leonard Koerner of counsel), for appellants.
Anthony J. Pirrotti for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the action dismissed.
Plaintiff, an industrial arts teacher at a junior high school, was injured when he was assaulted by one of the students as he sought to break up an altercation in the hallway of the school. Asserted liability of the city was predicated on evidence of unjustified failure fully to have observed a detailed security plan promulgated by the board of education pursuant to section 2801 of the Education Law. This plan was designed to maintain public order on school property, and among its beneficiaries were students, teachers, staff members, visitors and other licensees and invitees alike.
That section provides:
"Regulation by boards of education of conduct on school district property
"1. The board of education, as defined in section two of this chapter, of every school district, however created, within the state shall adopt rules and regulations for the maintenance of public order on school property and shall provide a program for the enforcement thereof. Such rules and regulations shall govern the conduct of students, teachers and other staff as well as visitors and other licensees and invitees. The penalties for violations of such rules and regulations shall be clearly set forth therein and shall include provisions for the ejection of a violator from the school property and in the case of a student or teacher, his suspension, expulsion or other appropriate disciplinary actions. Such rules and regulations shall be filed with the regents and the commissioner of education not later than ninety days after the effective date of this act. All amendments to such rules and regulations shall be filed with the regents and the commissioner of education not later than ten days after their adoption.
"2. If the board of education fails to file the rules and regulations within the time required by this section such school district may not be eligible to receive any state aid or assistance until such rules and regulations are duly filed.
"3. Nothing contained in this section is intended nor shall it be construed to limit or restrict the freedom of speech nor peaceful assembly."
Plaintiff recognizes, as he must, that absent a special duty owed to him liability for his injuries may not be imposed on the city for its breach of a duty owed generally to persons in the school system and members of the public ( Glick v City of New York, 53 A.D.2d 528, affd 42 N.Y.2d 831; Bass v City of New York, 38 A.D.2d 407, affd 32 N.Y.2d 894; Riss v City of New York, 22 N.Y.2d 579). It is his contention, however, that a special relationship was created between him and the board of education when the security plan was adopted and that the board breached its special duty of care to him when it failed to enforce its own security rules. He grounds his assertion of special duty, and seeks to distinguish the holding in the Glick case, on the circumstance that as a teacher he was himself an integral component of that plan. Nothing in the adoption or content of the plan warrants a finding that it was designed or intended specially for his benefit or that of other teachers in the school. They stood as its beneficiaries in exactly the same position as students, other personnel in the school system, and members of the public who came on the school property. We reject his contention that because the teachers had a role to play in the implementation of the plan they were somehow thereby converted into its special beneficiaries. Indeed other than reciting the bare fact that as a teacher plaintiff had responsibilities for implementation of the plan, he advances no rationale as to why that fact without more should give rise to the special duty which is a condition precedent to governmental liability.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.
Order reversed, etc.