Murray v. RESEARCH FOUND

ROBERT J. LUNN, J. The defendant, Reginald Wright, was hired by defendant Research Foundation of the State University of New York (hereinafter Research Foundation) as a counselor for its Educational Talent Search Program. This program's goal was to identify and assist students who would not traditionally attend college but had the potential to succeed in college. Reginald Wright was stationed at the Jefferson Middle School where he was given his own office. At the time of the incidents complained of, the infant plaintiff was a seventh grader at Jefferson Middle School. He was not a participant in the Educational Talent Search Program, but was known to defendant Wright through the church that they both attended. Defendant Wright was given the authority by the school district to issue passes to students in order to secure their release from class to go to Mr. Wright's office. Despite not being enrolled in the Educational Talent Search Program, Wright issued passes to the infant plaintiff to secure his release from class. During an approximately six-month period, defendant Wright sexually abused the student both in his office at the Jefferson Middle School and at the child's home. No one from Jefferson Middle School asked for or received a list of the students in the Educational Talent Search Program or otherwise verified whether a student was in fact a participant in the program. The district also took no steps to verify whether parental consent had been obtained for each of the students participating in the Educational Talent Search Program. The child's mother commenced this action alleging causes of action for negligent supervision, negligent hiring, breach of implied contract and a derivative claim on behalf of herself. Defendants Research Foundation and Rochester City School District now move for summary judgment dismissing the complaint. Plaintiff cross-moves for partial summary judgment regarding liability. injuries caused by high school students to other high school students. Here we have a seventh grade child meeting behind closed doors with an adult not employed by the school district for a six-month period. As stated by the First Department, "The potential danger to the child under the circumstances of this case can be reasonably foreseen and could have been prevented by adequate supervision of the school." (Garcia v City of New York, 222 AD2d 192, 196 [1st Dept 1996], supra.) What may be reasonable and prudent for high school students may not apply to middle school students. Where the actions to be taken by the school are so obvious and could easily have prevented the harm notice is not necessarily an issue. (Garcia v City of New York, supra, at 196; Coon v Board of Educ., 160 AD2d 403 [1st Dept 1990]; Gonzalez v Mackler, 19 AD2d 229 [1st Dept 1963].) In this case there certainly was "evidence of a potential for harm" sufficient to raise a question of fact for a jury. (Shante D. v City of New York, supra, at 362.) Defendant Rochester City School District's motion for summary judgment is denied. This court cannot however determine the school district's liability as a matter of law. Accordingly, plaintiff's cross motion is likewise denied.