Two issues and three cases are dealt with today. The first deals with successfully suing a student for assaulting or otherwise injuring a teacher. The second deals with an Assistant Principal who won a U rating appeal by going to Court.
Zelinda Dinardo v. City of New York. 2009 NY Slip Op 8853; 2009 N.Y. LEXIS 4144, (NY, Dec. 1, 2009)
There has been a rumor going around that teachers can no longer sue students for assault due to this Court of Appeals decision. While winning has been made more difficult there still are circumstances you can sue.
Ms. Dinardo, a special education teacher, was injured by one of her students. She claimed that she had notified the school's administration about the violent propensities of the student and received verbal assurance that something would be done about him. After she was injured she commenced a lawsuit and won a $500,000 judgment against the Board. (She also sued the child in a separate action but it is unclear what happened with that case).
The Board appealed to the Appellate Division and the State's highest court, the Court of Appeals and in a decision with a sharp dissent our State's highest court ruled that the judgment would not stand. While the Court conceded that the assurances were made they found no special duty existed between the Board and Dinardo to make the Board liable for her injuries.
While it is difficult to define the special duty must be such that the teacher can reasonably rely upon. Just what Dinardo could do in a situation that she was in is puzzling. She can't refuse to teach the potential dangerous child but should have obtained more specific assurances that the administration knew of the child's dangerous propensities and that they were doing something about it. While not the normal teacher practice several well placed memos and a proactive Union could have prevented the loss of this judgment.
No sooner was the Dinardo case reported that a school safety officer met the same fate. Maria Rollins also injured by a special education student could not recover her damages because the Appellate Division found no special duty. Maria Rollins v. Board of Education, 2009 NY Slip Op 9292; 2009 N.Y. App. Div. LEXIS 9125, (AD 1st Dept, December 15, 2009)
In the Matter of Gloria Blaize, appellant, v Joel L. Klein, etc., et al., 2009 NY Slip Op 9021; 2009 N.Y. App. Div. LEXIS 8848 (AD 2nd Dept., Dec. 1. 2009)
Gloria Blaize was U rated in 2003 by District 22 Superintendant John T. Comer. The original case sought reinstatement to her position and reversal of the U rating but by the time she started the case the 4 month statute of limitations ran on her reinstatement claim (remember the time starts to run when you are terminated or demoted not after your U rating hearing or appeal).
In any case the Appellate Division noted that her claim for the U rating was still viable and sent it back to the Supreme Court for a determination. The Supreme Court affirmed the DOE and on appeal the Appellate Division reversed.
The Appellate Division cited several irregularities which required reversal similar to Jill Budnick's case reported below. These included the fact that Blaize was not provided a complete set of documents on which the U rating determination was based within three weeks of her challenge as mandated by BOE by-law 5.3.4A. The hearing took place over two years after her challenge which also violated BOE procedures.