In a decision that was handed down by New York's highest court on June 10, 2010, the Court of Appeals affirmed the dismissal of a case that was brought against a New York school for negligent supervision where a young student's foster parents sought to hold the school responsible for a sexual assault that was perpetrated against their 5 year-old foster child by a fellow 11 year-old child who had a troubling history. More particularly, in Brandy B. v. Eden Central School District, the 11 year-old boy had previously been placed in foster care at age three due to findings of neglect and possible physical abuse. After several years in foster care, the 11 year-old was returned to his father and step-mother, but this was not the end of the story: when he turned nine, he was hospitalized due to his displays of severe aggression at home.

After a few years without incident and positive reviews, this 11 year-old student was mainstreamed into a 5th grade class. And, unfortunately, while taking the school bus together, that is when this sexual assault occurred.

In affirming the lower court's dismissal of the negligent supervision case, the Court opined as follows:

"It is well-settled that schools have a duty to adequately supervise their students, and "will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994], citing, Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 306 [1965]; Decker v Dundee Cent. School Dist., 4 NY2d 462, 464 [1958]). However, unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct (see id.). "[I]t must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (id., citing Bertola v Board of Educ, 1 AD2d 873 [2d Dept 1956]) ...

"Here, the alleged sexual assault against Brenna was an unforeseeable act that, without sufficiently specific knowledge or notice, could not have been reasonably anticipated by the school district. Robert's history demonstrates that he had severe behavioral issues that had not manifested themselves for more than two years. Since his initial hospitalization in 2000, each program noted that he had not displayed any aggression towards anyone, and, because of his behavioral improvements, he was approved for less restrictive programs. More significantly, his prior history did not include any sexually aggressive behavior. Thus, without evidence of any prior conduct similar to the unanticipated injury-causing act, this claim for negligent supervision must fail."

It is noteworthy that one of the judges dissented, stating that the negligent supervision claims against the school should have been left for determination by a jury, "[B]ecause I believe a reasonable jury could find that sufficient notice was given to Eden Central School District and Eden Central School District Board of Education (collectively, the school defendants) and that the sexual assault here was a "foreseeable injur[y] proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994])."