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The Rogak Report: 06 July 2007 ** Negligent Hiring - Schools **

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  • Lawrence Rogak
    Message 1 of 1 , Jul 6, 2007

      Belfiore v. Connetquot Central School District of Islip, NYLJ 7/07/07
      (Index no. 98-24359) (Supreme Court, Suffolk County) (Doyle, j)

      Plaintiff Laurie Belfiore commenced this action against the
      Connetquot Central School District on behalf of her minor daughter
      Nicole Belfiore for personal injuries the minor sustained on October
      20, 1997, when she was allegedly sexually assaulted by her third
      grade teacher, co-defendant Thomas Savastano. Among other things,
      plaintiffs' complaint alleges that the School District was negligent
      in its hiring and retention of the co-defendant; in allowing and
      permitting sexual abuse to occur on school property; and in allowing
      the co-defendant to teach and supervise students despite having
      notice of his abusive propensity. Plaintiffs also asserted a
      derivative claim against the School District for loss of consortium
      related to the minor's injuries.

      The School District moved for summary judgment on the grounds that it
      neither broached its duty to supervise the minor nor failed to
      investigate prior complaints against the co-defendant. The School
      District also contended that it cannot be held liable for the
      teacher's actions under the theories of respondent superior or
      negligent retention because the teacher's acts were committed for
      personal motives unrelated to the furtherance of its business and the
      School District neither knew, or had reason to know, of the co-
      defendant's sexual propensity.

      Plaintiffs cross-moved for summary judgment against co-defendant
      Savastano on the ground that Savastano's prior criminal conviction
      precluded him from relitigating the issue of liability for his
      criminal acts.

      "Initially, it should be noted that the portion of plaintiffs'
      complaint relating to their claim for loss of consortium due to the
      minor's injuries must be dismissed since such claims are not
      recognized by common law," held the Court. (citing De Angelis v.
      Lutheran Med. Ctr., 58 NY2d 1053, 462 NYS2d 626 [1983]; see also,
      Dunphy v. J & I Sports Enters., 297 AD2d 23, 748 NYS2d 595 [2002];
      Devito v. Opatich, 215 AD2d 714, 627 NYS2d 441 [1995]).

      "A school has a duty to adequately supervise students in its care and
      may be held liable for injuries that the foreseeable and proximately
      related to the school's failure to provide adequate supervision. The
      duty owned by a school to its student stems from the fact of its
      physical custody over the student. By taking physical custody of the
      child, the school has deprived the child of the protection of her
      parents or guardian. Therefore, the school is properly required to
      give the child the protection which its custody has deprived her. The
      standard to determine whether the school has breached its duty is to
      compare the school's supervision and protection to that of a parent
      of ordinary prudence placed in the identical situation and armed with
      the same information. Where liability is imposed on a school for
      negligent supervision due to injuries related to an individual's
      intentional acts. the plaintiff generally must demonstrate the
      school's prior knowledge or notice of the individual's propensity or
      likelihood to engage in such conduct so that the individual's acts
      could be anticipated or were foreseeable."

      "Although the School District established that the co-defendant's act
      was not done in furtherance of the school's business such that it
      could not be held liable under the theory of respondent superior
      (see, N.X. v. Cabrini Med. Ctr., 97 NY2d 247, 739 NYS2d 348 [2002];
      Dia CC v. Ithaca City Sch. Dist., supra; Ghaffari v. North Rockland
      Cent. School Dist., 23 AD3d 342, 804 NYS2d 752 [2005]), in
      opposition, plaintiffs have demonstrated the existence of an issue of
      fact as to whether the School District and its employees, namely, Mr
      Mandel (teacher) and Gerard Devlin (then acting Principal), had
      notice that the co-defendant previously touched another student,
      Moniquc Young, in a sexually inappropriate manner. While Ms. Young
      testified that she did not inform anyone of Savastano's actions
      toward her, her testimony that Mr. Mandel subsequently informed her
      that Savastano wanted to apologize for what happened 'because he was
      so use to hugging his wife and his daughter' indicates that Mr.
      Mandel had reason to know that Savastano may have anticipated
      allegations of inappropriate touching from the student but failed to
      question the student with a view to ensuring that she was not touched
      in a sexual manner. Furthermore, Ms. Young testified that sometime
      after falsely informing the co-defendant that principal Devlin knew
      about the sexual abuse, the co-defendant proceeded to take her to
      principal's office where she overheard Mr. Devlin loudly asking
      Savastano behind closed doors 'How could you do that?' Despite the
      lapse of time between Savastano's saga with Ms. Young and his
      subsequent sexual abuse of the plaintiff, whether the School District
      and its employees had notice of his propensity but breached its duty
      to provide adequate supervision and protection to the plaintiff is an
      issue of fact for the jury to resolve. The existence of an issue of
      fact as to whether the School District and its employees had notice
      of the co-defendant's propensity also requires denial of the portion
      of its motion seeking to dismiss plaintiffs' claim for negligent
      hiring and retention."

      "Accordingly, defendant is granted summary judgment with respect to
      the portion of plaintiffs' complaint seeking to hold the School
      District liable on the theory of respondent superior. However,
      defendant's motion is denied with respect to plaintiffs' remaining
      causes of action premised on negligent hiring and retention and
      failure to provide adequate supervision."

      "With regard to plaintiffs' cross motion, insofar as the 'identity of
      the issue' has been identified and co-defendant Savastano failed to
      demonstrate that he did not have a full and fair opportunity to
      litigate said issue in the prior criminal action against him,
      plaintiffs have established their prima facie entitlement to judgment
      against Savastano on the issue of liability. Accordingly, plaintiffs'
      cross motion for summary judgment against co-defendant Savastano on
      the issue of liability is granted. Nevertheless, the entry of
      judgment is to be held in abeyance pending resolution of plaintiffs'
      remaining claims against the School District."

      Larry Rogak
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