The opinion of the court was delivered by: Jones, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In this action against defendants Eden Central School District and Child and Family Services of Erie County (CFS) for damages resulting from an alleged sexual assault committed by an 11-year-old student upon a five-year-old student, the issues are whether (1) the school district had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury so that the third-party act could have been reasonably anticipated and (2) CFS had a duty to warn the child-offender's foster parents and others of the need to closely supervise him. We hold that the school district proved as a matter of law that they did not have sufficiently specific knowledge or notice of the injury-causing conduct. As to CFS, plaintiff did not set forth a prima facie claim against it.
Robert F., born October 1991, has a troubling history. Based upon records from multiple sources, he was removed from his parents' home at age three due to neglect and possible physical abuse. After living in foster care for several years, he resided with his father, step-mother and several siblings until he was hospitalized at age nine because he displayed severe aggression in the home.
In October 2000, Robert was admitted to Western New York Children's Psychiatric Center, where he resided until his placement at Crestwood Children's Center in January 2001. Crestwood's assessment of Robert, dated September 2001, noted his risk behavior involved: "verbal aggression, aggression towards himself and others, threats with weapons, fire setting, hyperactivity, impulsivity, auditory hallucinations, history of stealing, temper tantrums, poor peer relations, academic problems, and history of suicidal injurious ideation's." The assessment further stated that he had not "presented any of his referral symptoms since admission." Crestwood also recommended that Robert receive "a lower level of care in the form of community residence," noting that he "has been free from self-harm as well as not harming or threatening others."
In January 2002, Robert entered the Lee Randall Jones Community Residence. At the same time, he was enrolled at the Stanley G. Falk School. A Counseling Individualized Education Plan (IEP) Summary Review conducted by the Falk School in February 2002 indicated that Robert was "a pleasant boy who appears to be adapting well to his structured school environment . . . [who] displays appropriate social skills in his interactions with others including, greetings, eye contact, taking turns and sharing." The review considered behavior concerns for Robert, which included restless and distractive behavior, and concluded that the Falk School was "appropriate in the least restrictive environment to meet his varied needs." In August 2002, Samantha Heise, Robert's case coordinator at the community residence, wrote that "Robert ha[d] not had one incident of physical aggression towards others or himself since admission." She noted that he had positive peer interaction. A second counseling IEP summary review provided by the Falk School and the community residence's "Admissions Committee Meeting Case Presentation" summarized Robert's prior acts, including behaviors detailed herein, as well as exposing himself and masturbating in public. It appears that Robert's stated history predates his hospitalization.
Sometime in 2002, Robert began residing with foster parents. In September 2002, he was transferred to the Eden Central School District to attend fifth grade. Robert's December 2002 IEP prepared by the school's committee recommended that he be placed in general education classes for science and social studies. In an undated, 2002-2003 Eden Central School District progress report, it was noted that: "Robert has a friendly personality. He was very polite with his peers and teachers. He will continue to need support for social and emotional development next year." Regarding his social and emotional development, his 2002-2003 IEP stated that he was immature for his age, seeking physical hugs and attention from adults, but that he did not need escorts or restraints. He was also assigned individual counseling and group counseling once a week throughout the school year.
In September 2002, Brenna B., who lived in the same neighborhood as Robert, started kindergarten with the Eden Central School District. Brenna and Robert rode the same school bus. It was there that the alleged sexual assault occurred in March 2003. Brenna's mother, Brandy B., had received some notice from Brenna of inappropriate interactions between the two children, namely, that Robert called Brenna his girlfriend; she spoke to the bus driver and requested that the two children not sit together. Thereafter, Brenna told her mother that Robert had exposed himself to her while sitting together on the school bus, and forced her to touch him.
Brandy commenced this action against the school district for injuries resulting from the alleged sexual assault based upon inadequate supervision of the children and against CFS for failing to warn the foster parents of the need to closely supervise Robert. Supreme Court granted defendants summary judgment dismissing the complaint. The Appellate Division affirmed (63 AD3d 1583). Plaintiff appeals by leave of this Court. We now affirm.
It is well-settled that schools have a duty to adequately supervise their students, and "will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 , citing, Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 306 ; Decker v Dundee Cent. School Dist., 4 NY2d 462, 464 ). However, unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct (see id.). "[I]t must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (id., citing Bertola v Board of Educ, 1 AD2d 873 [2d Dept 1956]). Summary judgment must be granted if the proponent makes "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," and the opponent fails to rebut that showing (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).
Here, the alleged sexual assault against Brenna was an unforeseeable act that, without sufficiently specific knowledge or notice, could not have been reasonably anticipated by the school district. Robert's history demonstrates that he had severe behavioral issues that had not manifested themselves for more than two years. Since his initial hospitalization in 2000, each program noted that he had not displayed any aggression towards anyone, and, because of his behavioral improvements, he was approved for less restrictive programs. More significantly, his prior history did not include any sexually aggressive behavior. Thus, without evidence of any prior conduct similar to the unanticipated injury-causing act, this claim for negligent supervision must fail.
Additionally, Brandy's reliance upon her statement to the bus driver -- that she did not want the two children sitting together -- and Robert's behavioral history as notice is unavailing. Brandy's statement did not name Robert or attribute any misbehavior to the unidentified boy that Brandy wanted to separate from her daughter. Moreover, his past conduct without any subsequent incident of aggression was far too removed to require that the school district provide Robert an aide or that CFS warn others of Robert's past. Therefore, because defendants demonstrated that they had no specific knowledge or notice of any similar conduct which caused the injury and plaintiff presented no triable issue of fact, the courts below properly granted them summary judgment.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
CIPARICK, J. (dissenting in part):
Because I believe a reasonable jury could find that sufficient notice was given to Eden Central School District and Eden Central School District Board of Education (collectively, the school defendants) and that the sexual assault here was a "foreseeable injure[y] proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 ...