A New York City public school teacher has a student in her special education class that she believes poses a danger to the safety of her classroom. The student had been verbally and physically aggressive for several months. The students increasing behavioral problems included bringing a knife to school, which resulted in a week’s suspension. The student frequently punched, kicked and threw various items at his classmates. He also threatened to kill the teacher, another teacher, and his fellow classmates on numerous occasions.
Concerned about the student’s behavior and the classroom safety risks it presented,the teacher and her supervisor submitted to the Board’s Committee on Special Education a written recommendation to remove the student from plaintiff’s classroom and place him in a learning environment better equipped to his highly problematic conduct. The school’s supervisor of special education and the principal had both told her that things were being worked on, things were happening and urged her to hang in there because something was being done to have the student removed. But before the Board acted, the teacher was injured when she tried to restrain the student from attacking another.
A jury found in favor of the teacher in her lawsuit against the New York City Board of Education. The Appellate Division, First Department agreed in a 3-2 decision. The Court of Appeals reversed in Dinardo v. City of New York, — N.E.2d —-, 2009 WL 4250125 (2009). The Court held that the vaguely worded statements by the teachers supervisor and principal that something was being done to have the student removed, without any indication of when, or if, such relief would come, did not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Thus there is no rational process by which the jury could have reached a finding that plaintiff justifiably relied on assurances by the Board of Education.
The dissent, written by Chief Judge Jonathan Lippman with a concurrence by Judge Carmen Beauchamp Ciparick, would have held that the supervisors’ repeated assurances that things were happening and something was being done suggested an impending solution to the dangerous situation. It would not be unreasonable for the jury to infer that plaintiff, in justifiable reliance on these assurances, chose to remain in the classroom and continue teaching rather than quitting as she had threatened. It should be stressed that the stark choice facing plaintiff was whether she should resign and abandon her class or continue to teach in a situation which was by any reasonable measure dangerous.
In electing to follow the latter, socially desirable course, plaintiff relied upon the municipality’s assurances that the situation would soon be rectified. Judge Lippman wrote that he was constrained by the decision in McLean v. City of New York, 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167(2009 ). In McLean, the Court of Appeals held that government action, if discretionary, may never form the basis for tort liability, even if a special relationship exists between the plaintiff and the municipality.
According to McLean, the special relationship exception only applies where the challenged municipal action is ministerial. Thus, laments the Chief Judge, under the rule announced in McLean, a plaintiff will never be able to recover for the failure to provide adequate police protection, even when the police voluntarily and affirmatively promised to act on that specific plaintiff’s behalf and he or she justifiably relied on that promise to his or her detriment.
This is particularly disturbing given our recognition that the police cases … all but occupy the special relationship field. This is indeed disturbing. Even before McLean municipalities were well protected by judicial precedent in cases alleging lack of police protection. If Judge Lippman is correct, the citizenry has no idea just how bereft of legal rights it is when the police fails to protect them from criminal activity. It also seems unfair inasmuch as a teacher in a private school would not have this hurdle were her employer fail to act reasonably to protect her from forseeable harm. We shall see how the lower courts decide.
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