In its June 10 decision in Brandy B. v. Eden Central School District, New York's Court of Appeals made it even harder to win a negligent supervision case in New York. And while I am not sure that the Court ultimately reached the wrong result in this case, I am troubled by the means through which the Court got there.

In this case, a 5 year-old girl was (allegedly) sexually assaulted by an 11 year-old boy that was on her school bus. This boy had anything but a clean record, however.

As noted in "How a School Can (Not) Be Liable for an Assault Under New York Law," after being removed from his home and placed in foster care at age three due to findings of possible physical abuse and neglect, this boy was later returned to his father and step-mother upon reaching age 11. In the interim period, he had been institutionalized in response to episodes of severe aggression at home.

After two years without incident (his prior acts had included pleasuring and exposing himself in public) and positive reviews, this 11 year-old student was recommended for, and ultimately mainstreamed into, a 5th grade class. And that is when the alleged sexual assault occurred.

In affirming the dismissal of this sexual assault and negligent supervision case, the Court asserted that since there had been no reported incidents with regard to the 11 year-old boy for roughly two years before this incident, "[T]he alleged sexual assault against [the infant plaintiff] was an unforeseeable act that, without sufficiently specific knowledge or notice, could not have been reasonably anticipated by the school district."

And here's where I (and the dissenting judge in this case) take serious issue with the decision: shouldn't a jury be the one to decide whether the school should have seen this coming? Why is the Court taking it out of their hands?

Under the particular circumstances of this case, I don't think it is unreasonable for a jury to conclude that the school should have had some heightened responsibility to keep close supervision on this 11 year-old boy, and thereby protect its other students - just as a responsible parent would act.

Jonathan Cooper
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Non-Compete, Trade Secret, Unfair Competition and School Negligence Lawyer
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