Sunday, December 20, 2009

From the Legal Side

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.


Anonymous said...

Did that assistant principal have tenure? My understanding is that it is impossible for an untenured assistant principal to have a u-rating reversed.

If the assistant principal have tenure,then there's a better chance of having the u-rating reversed at the higher court.

Jeff Kaufman said...

The AP in the case was on probation. Sorry if that was not clear. The Court made no distinction between tenured and untenured positions as the rating is not dependent on this status.

You raise an interesting issue, though. What happens when the AP has the rating reversed yet she is still demoted to teacher. In this case the U Rating would be erased from her file but it will not restore her to her former position.

JW said...

I'm having trouble understanding "no special duty" in this sentence: "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."

When violent people are incarcerated, even when charges are pending and they are still "innocent" under the law, their caretaker/jailers are armed and trained to handle that kind of behavior. If they are unarmed (like medics and psychologists), there are armed police officers around. They aren't alone with the person unless they want to be.

The DoE is neither arming or training teachers, nor giving us armed agents (or any kind of extra personnel, actually) when we deal with these kids in our classrooms or duties.

Isn't it the DoE's responsibility to install safety features like extra personnel when a student has a history of violence?
More importantly, I guess: Why are these known cases of violent behavior in our classrooms? Isn't that a failure of the DoE somehow?
Why don't we have the same legal protections as those taking care of violent adults?

PS: It's not only special ed kids. I'm dealing with semi-violent regular ed kids in all of my classes, as well as on cafeteria duty.

Any clarification would be really appreciated.

Jeff Kaufman said...

While special duty is a term of legal art it is important to note that the courts have routinely held that government will not be held to a standard that guarantees anyone's safety. This stems from the belief that the function of government is not that of insurance. In order to hold someone or some entity liable for injury there must exist a duty. This duty is a relationship between the parties that creates a legal obligation. Making government responsible for safety in this circumstance would be to create a duty that is not recognized under the law. Government can be held to be responsible when there is a special duty, i.e., the government gave specific assurance to the victim that their safety would be protected. This was not the case since the assurance was vague and not specific even though the school knew about the child's violent propensities.

Your jail example is wrong on a couple of fronts. First, jailers are not armed. Secondly the above special duty standard applies. People who work in the jail accept some level of risk. If the Corrections Department can be shown to have created a special duty then the City will be liable.

A good example of special duty is when a landlord, knowing that his building is in a high crime neighborhood, puts locks on the entrance door to the building, fails to maintain them and then a tenant gets assaulted by a criminal. The landlord would not normally be liable for the criminal actions of this third party but because of his taking responsiblity to provide some level of protection and failing to maintain it a duty would have arisen and the landlord would be liable for the injuries.

I hope this answers your questions.

JW said...

Yes it does. And I'm sorry to be delayed in thanking you but I forgot to check off email notification on this post, so was not aware that you had answered.

Much clearer now. Thank you for your time writing such a thorough answer.