Ernest v. Red Creek Central School Dist., 99 N.Y. Int. 0117 (July 8, 1999).




Whether evidence presented triable issues of fact as to the negligence of a school district, a county, and a town in the death of a second-grade student who was struck by a vehicle on a street in front of his school known to be hazardous to pedestrian traffic.


Yes, but only as to the negligence of the school district, which could have foreseen the accident, and of the county, which owned the road and had a duty to make it safe for pedestrians.


Plaintiff sued the school district, Wayne County, and the Town of Wolcott for the death of a nine-year-old student, arguing that the town and the county had been negligent in failing to install sidewalks and traffic control devices on the dangerous street in front of Cuyler Elementary School, and that the school district had been negligent in dismissing the student from class in violation of a school policy not to release walking students until after all buses had departed from the school. The driver whose vehicle struck and killed the student stated that a school bus had blocked his view of the child, thus causing the accident.

On the evidence, Supreme Court granted summary judgment to the school district and to the town, but not to the county. Appellate Division modified that order, holding that the county was also entitled to summary judgment.

Reversing in part, the Court of Appeals found that the evidence presented triable issues as to the negligence of the school district and the county. The school district's policy that pedestrian students not be released until all school buses had cleared the vicinity was evidence of the foreseeability of accidents like the one that had resulted in the student's death. Furthermore, the school district arguably had breached its duty of care toward the student by releasing him without further supervision into a foreseeably hazardous setting partly of its own making. With regard to the county's negligence, the Court noted that for several years the county had been aware of the hazards facing pedestrians who used the street fronting the school, but had failed to make improvements. Moreover, the evidence supported an inference not only that the county had been negligent, but also that the county's failure to install sidewalks and other traffic control devices had proximately caused the accident underlying this suit.

Since the county, not the town, owned the road on which the accident occurred, the Court rejected the argument that the town should be held liable on the same grounds as the county, and affirmed the grant of summary judgment in the town's favor.