APPEAL by the defendant The Forum School, in an action to recover damages for personal injuries, as limited by its brief, from so much of an order of the Supreme Court (Thomas P. Aliotta, J.), dated May 24, 2010, and entered in Richmond County, as granted its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it only to the extent of dismissing the cause of action to recover punitive damages and otherwise denied the motion, SEPARATE APPEAL by the defendant Michelle Timothy, as limited by her brief, from so much of the same order as granted her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her only to the extent of dismissing the cause of action to recover punitive damages and otherwise denied the motion, and CROSS APPEAL by the plaintiffs, as limited by their brief, from so much of the same order as granted the motion of the defendant New York City Department of Education for summary judgment dismissing the complaint insofar as asserted against it.
Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler of counsel), for appellant The Forum School.
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (James P. Connors and William Schleifer of counsel), for appellant Michelle Timothy.
Guercio & Guercio, LLP, Farmingdale, N.Y. (Gregory J. Guercio of counsel), for respondents-appellants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for respondent.
RANDALL T. ENG, P.J., RUTH C. BALKIN, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.
OPINION & ORDER
Jonathan Begley, a nine-year-old autistic boy who suffered from asthma as well as allergies to a wide range of foods and substances, was enrolled in the summer of 2004 as a student in The Forum School located in Waldwick, New Jersey. His placement in this private educational facility for special needs children came as the result of an Individualized Education Program prepared by his local Staten Island school district, which directed that, in light of his history of severe asthma and allergies, he be provided with such exceptional services as a registered nurse to accompany him while he traveled to and from school and monitor him throughout the school day. Jonathan's mother interviewed and selected several nurses to share the duties of caring for the child on school days, and the New York City Department of Education (hereinafter the DOE) paid for the nurses' services. Jonathan had just finished lunch at school on the afternoon of July 21, 2004, when he began to experience difficulty in breathing. Believing that Jonathan was having an asthma attack, the nurse who accompanied him to school that day administered Proventil to the child through his nebulizer. However, when Jonathan's condition did not improve, his nurse realized that he was having a severe allergic reaction, and administered epinephrine by injecting him with an "epi-pen." School personnel called 911, and the school nurse assisted Jonathan's nurse as she attempted to alleviate his respiratory distress by injecting him with two more epi-pens. When an ambulance arrived, paramedics transported Jonathan to a nearby hospital, where he died two days later. Although the allergen which triggered Jonathan's reaction has never been conclusively determined, his parents, the plaintiffs Karen Begley and Brian Begley, suspect that it may have been caused by Jonathan's exposure to blueberries during a classroom lesson that morning.
Following the death of their son, the plaintiffs commenced this action against, among others, the DOE, The Forum School, and Jonathan's nurse, Michelle Timothy, alleging that they negligently allowed Jonathan to be exposed to a substance to which he was allergic, and failed to properly respond when he began exhibiting symptoms of an anaphylactic (that is, a severe allergic) reaction. After extensive discovery, the DOE, The Forum School, and Timothy separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. The Supreme Court (Aliotta, J.) granted the DOE's motion in its entirety, concluding that it could not be held liable on a negligent supervision theory because Jonathan was not in its physical custody at the time of his injury, and that it could not be held vicariously liable for Timothy's alleged negligence because she was an independent service provider. However, the Supreme Court denied the respective motions of The Forum School and Timothy for summary judgment dismissing the complaint and all cross claims insofar as asserted against them except to the extent of dismissing the cause of action to recover punitive damages. For the reasons that follow, we conclude that the Supreme Court properly granted the DOE's motion, and we take this opportunity to clarify the extent of the DOE's duty to supervise a child who is not in its physical custody. We also conclude that the motions of The Forum School and Timothy should have been granted in their entirety.
Jonathan Begley, the child whose tragic death is at the center of this litigation, was born on January 10, 1995, the second of the plaintiffs' two children. Jonathan first exhibited symptoms of asthma at the age of 10 months, when he started to wheeze. The family pediatrician prescribed Proventil, administered through a nebulizer, for use during asthma attacks. When Jonathan was about a year old, a pediatric immunologist began testing him for various allergies. The first round of testing determined that Jonathan was allergic to milk, eggs, wheat, soy, and gluten. As Jonathan grew older, he also developed food allergies to tree nuts and rye. He was further determined to be allergic to a number of other substances, including dust mites, animal dander, flowers, cigarette smoke, perfume, and certain soaps and hand creams. In addition to his health problems, when Jonathan was about two years old, he was diagnosed as autistic.
In the summer of 2001, when Jonathan was six, his local School District's Committee on Special Education acknowledged, during the course of a hearing, that it was unable to provide him with an educational program that would meet both his educational and medical needs. The plaintiff parents located a placement for Jonathan at The Forum School in Waldwick, New Jersey, and the District concurred that The Forum School, which specializes in the education of disabled students, would be an appropriate setting for Jonathan. In accordance with the hearing officer's directive, on July 24, 2001, the Committee on Special Education prepared an Individualized Education Program (hereinafter IEP), which called for Jonathan to attend The Forum School, and have a registered nurse to accompany him while he traveled to and from school on a bus dedicated to his sole use, as well as to monitor his condition throughout the school day. The 2001 IEP noted that Jonathan was allergic to all dairy, wheat, gluten, eggs, bread, crackers, and yogurt, and that due to his extreme allergies, "an epi-pen must be present at all times." An updated IEP prepared in 2004 stated that Jonathan was severely allergic to "wheat, gluten, eggs, all dairy, perfume, " that he required "nursing services to administer a nebulizer for asthma two to three times a week, " and should have two epi-pens "present at all times."
Jonathan entered The Forum School in September 2001. The DOE paid his tuition at the school, and also paid for the cost of transportation and nursing care. The nurses who shared the duty of accompanying Jonathan to school and monitoring his medical condition throughout the school day were interviewed and chosen by his mother, the plaintiff Karen Begley. The plaintiff mother packed lunch and snacks for Jonathan to take to school each day, and also prepared a medical bag for Jonathan that contained a portable nebulizer and all of his medications, including Proventil, Benadryl, and four epi-pens. To alert the school staff and Jonathan's nurses to potential allergens, the plaintiff mother prepared laminated cards which indicated that Jonathan had severe allergies to dairy products, eggs, and foods containing these ingredients, and that ingesting or touching these foods would cause an anaphylactic reaction. In addition, she provided the nurses and the school with a letter from Jonathan's physician advising that he had severe asthma and life threatening food allergies, and setting forth a "partial list" of his allergies. The physician's letter noted that "all dairy products, " eggs, and tree nuts would cause anaphylaxis, which should be treated by injecting with an epi-pen, to be repeated in 15 minutes, and, if conscious, the administration of liquid Benadryl. The letter further directed "[g]ive Proventil via nebulizer for wheezing."
Despite Jonathan's severe asthma and allergies, during the nearly three-year period that he attended The Forum School, he was able to experience some of the normal joys of childhood by participating in activities which included swimming in the school pool with other children, playing basketball, and going on the swings during recess. From the time he entered The Forum School in September 2001 through the end of the spring semester in 2004, Jonathan's private nurses sat inside the classroom next to him. However, in the spring of 2004, Jonathan's teacher expressed concern that one of the nurses was "hovering over" Jonathan, impeding his development of independence. As a result, at the beginning of the summer 2004 semester, a new policy was implemented requiring the nurses to sit in the hallway outside Jonathan's classroom. From this vantage point, the nurses were still able to see Jonathan, who was about five feet away. The defendant nurse, Michelle Timothy, recalls that at the time this seating policy was implemented, the teacher assigned to Jonathan's class for the 2004 summer session assured her that she could enter the classroom if she needed closer access to Jonathan, and that she usually did so about once a day.
Jonathan suffered the severe reaction that ultimately resulted in his death on July 21, 2004. That morning, his teacher, Ann Schwartzstein, noticed that Jonathan was a little red in the face and a little agitated, but he "returned to normal very quickly, " and went to gym class with his classmates. After the children returned from gym, Schwartzstein conducted a "multi-sensory" lesson on the State of Maine, reading the children a book called "Blueberries for Sal, " and displaying a basket of blueberries to make the story come alive for them. Both Schwartzstein and Timothy, the nurse who accompanied Jonathan to school that morning, agree that Jonathan was seated at least five feet away from the blueberries, and they did not see him touch or handle the blueberries in any way. The next scheduled activity for the children after the lesson was lunch, which took place in the school lunchroom between 11:45 a.m. and 12:15 p.m.
As the lunch period came to a close and Jonathan finished eating, he and Timothy got up to empty their trays into the garbage. As they were returning to the lunch table, Jonathan told Timothy that he was having trouble breathing and asked for his "nebi." Timothy checked Jonathan's breathing with a stethoscope and detected wheezing. Initially believing that Jonathan was experiencing an asthma attack triggered by agitation, Timothy poured a vial of Proventil into his nebulizer and began to administer it. She then walked Jonathan back to his classroom so that she could assess him in a quiet environment. When Jonathan's breathing did not improve and he became increasingly agitated, Timothy gave him another Proventil treatment, and administered an epi-pen. She administered a second epi-pen about 10 to 15 minutes later, and a third epi-pen at some point thereafter. The plaintiffs allege that the first epi-pen used, which came from Jonathan's own medical bag, had an expiration date of December 2003, and was thus expired on the date it was administered. The Forum School's nurse, Elizabeth Golub, received a call summoning her to Jonathan's classroom sometime between 12:15 and 12:20 p.m. Golub arrived in the classroom about a minute later, accompanied by The Forum School's director, Dr. Steven Krapes. At that point, Timothy was in the process of giving Jonathan a nebulizer treatment. Jonathan's face was red, and he was trying to pull off the nebulizer mask. When Timothy told Golub that Jonathan was "having a reaction to something, " Golub contacted the school office manager via intercom, and instructed her to call 911 immediately. According to local police department records, the request for an ambulance was made at 12:24 p.m. Golub then helped stabilize Jonathan's position so that Timothy could administer the second epi-pen. According to Golub, she and Timothy also decided to attempt to administer oxygen to Jonathan because they "felt [they] needed to do anything [they] could do to try to help him get some air." Dr. Krapes assisted by attempting to calm Jonathan down, and holding Jonathan so that the nurses could place a mask on his face. According to Dr. Krapes, a police officer who responded to the school's 911 call before medical personnel arrived stated that the ambulance had been delayed because three other calls for medical assistance had been made at the same time. Dr. Krapes estimated that an ambulance first arrived at about 12:40 p.m., about 20 minutes after the school contacted 911. Once paramedics arrived at the scene, they took over Jonathan's care, intubating him and administering medication through an IV. Jonathan was transported to Valley Hospital, where he died two days later. Although Jonathan's death certificate initially indicated that he died of natural causes, the plaintiff mother asked the hospital to amend the certificate to indicate the specific cause of death. As amended, the death certificate lists the cause of Jonathan's death as "Hypoxic Ischemic Encephalopathy, Acute Anaphylasix, and Severe Atophy."
Eleven months after the death of their son, the plaintiffs, individually and as the administrators of Jonathan's estate, commenced this action asserting claims sounding in negligent supervision against the DOE and The Forum School, and claims sounding in both nursing malpractice and negligent supervision against Timothy . Among other things, the plaintiffs alleged that the DOE and The Forum School had negligently allowed Jonathan to be "exposed to agents known and/or unknown to cause a serious allergic reaction, " had failed to administer aid to Jonathan "pursuant to the protocol specifically known to defendants, " and had failed to timely contact emergency rescue services. The plaintiffs also asserted that the DOE and The Forum School had denied Jonathan's right under his IEP "to have the nurse specifically assigned to him in his presence throughout the school day." The plaintiffs further charged that Timothy had negligently failed to timely diagnose the true nature of Jonathan's condition, had failed to properly manage and treat his condition, and had failed to provide him with a safe and sterile lunch area and protect him from injury while he was under her care and control. Extensive discovery was conducted, including depositions of the plaintiff parents, Timothy, a representative of the DOE, teacher Ann Schwartzstein, school nurse Elizabeth Golub, Dr. Krapes, and three of Jonathan's treating physicians.
After discovery was completed, The Forum School moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. In support of its motion, the school argued that the testimony adduced during pretrial depositions demonstrated that it provided Jonathan with a safe environment, and that there was no evidence that Jonathan was exposed to his known allergens or anything else that could reasonably have been anticipated to be harmful. More specifically, the school submitted that it complied with Jonathan's IEP by allowing his private duty nurse to observe him at all times, and ensuring that all staff was aware that Jonathan was to eat only food brought from home. The school further maintained that its teacher-to-student ratio was "beyond reasonable, " and added that "[s]hort of completely isolating Jonathan, it is difficult to conceive of any precaution or measure that could have prevented this unfortunate incident." The school also contended that there was no evidence that its alleged negligence proximately caused Jonathan's anaphylactic reaction, stressing in this regard that the cause of the reaction remained unknown. The school additionally noted that while the plaintiffs claimed that Jonathan's anaphylactic reaction was caused by his exposure to blueberries, the deposition testimony of the plaintiff mother revealed that Jonathan had never actually been tested for an allergy to blueberries.
In opposition to the motion, the plaintiffs argued that The Forum School was negligent in its supervision and monitoring of Jonathan both before and after he suffered an anaphylactic reaction. According to the plaintiffs, the school's negligence included preventing Timothy "from discharging her professional duties to monitor and assess Jonathan's medical condition, " resulting in her failure to ensure that Jonathan did not come into contact with life-threatening food allergens. In addition, the plaintiffs asserted, for the first time in the litigation, that the school was vicariously liable for the "medical malpractice" of school nurse Elizabeth Golub, which included her alleged failure to discharge an appropriate degree of professional care in attempting to treat Jonathan's anaphylactic reaction.
In support of their position, the plaintiffs relied upon the affidavit of Karen McDonald, a registered nurse certified in oncology, who averred that she had been specifically trained in how to recognize, manage, and treat allergic reactions, and in emergency response to anaphylaxis. Based on her review of evidence including deposition testimony, medical records, and Jonathan's death certificate, McDonald opined that Golub deviated from good and accepted standards of nursing practice by failing to provide Jonathan with a safe environment, and failing to follow his physician's protocol when he exhibited signs and symptoms of anaphylaxis. More specifically, McDonald maintained that it was a departure for Golub to have failed to provide a student with known severe food allergies with a "disinfected lunch environment." In her view, Golub should have created a protocol to manage Jonathan's environment which included ensuring that his ...