- School Not Liable for Student Left on Bus
- Non-Park Use Violates Public Trust
- No Overtime for Resident Janitors
School Not Liable for Student Left on Bus
A recent decision of the Second Department held that a private school was not liable for damages, when a three year old special needs child was left unattended on a school bus for approximately six hours, after he failed to exit the bus upon his arrival at the defendant school. The parents of the child commenced the action against the school and the independent bus company, alleging that both breached their duty to ensure their child’s safe removal from the bus, particularly in view of his special needs. Arroyo v. We Transport, Inc., 118 A.D.3d 684 (2d Dept. 2014).
The parents claimed that the school was liable for two reasons. The first was based upon the common-law theory of in loco parentis, “in place of a parent,” which refers to a person or entity who has fully put itself in the situation of a lawful parent, and thus assumes all the obligations incident to the parental relationship, and has the legal obligation to protect that child while in their charge. The Court rejected this argument. “A school’s duty to its students is dependent on its physical custody of those students. Custody ceases when the student has passed out of the ‘orbit of the school’s authority.’” Id. citing, Stephenson v. City of N.Y., 19 N.Y.3d 1031, 1033 (2012) and Pratt v. Robinson, 39 N.Y.2d 554 (1976). Because the child never left the bus and entered the physical custody of the school, the school could not be held liable upon this theory.
The second theory of liability was based upon the tort doctrine that “voluntary conduct may give rise to liability, even if there would otherwise be no duty to act, if ‘the defendant’s affirmative action adversely affected the plaintiff and the defendant failed to act reasonably.’” Arroyo, 118 A.D.3d at 649 (quoting Heard v. City of New York, 82 N.Y.2d 66 (1993). Plaintiffs were correct in that a letter sent from the school 12 days after the incident established that the school had a preexisting policy of “ascertaining the whereabouts of children absent from class.” Nevertheless, the record revealed that plaintiffs did not become aware of that policy until after the incident. “Therefore, the parents could not have relied on that policy to confirm the student’s safe arrival at school.” The absence of reliance, a mandatory element of this claim, foreclosed liability on this ground as well. Thus, the school’s motion for summary judgment, dismissing the complaint insofar as it was asserted against it, was granted. The case was not dismissed, however, as asserted against the co-defendant bus company.
Non-Park Use Violates Public Trust
In a corner of Kings Point Park on the Great Neck Peninsula of Long Island, sits about 5.4 acres of land filled with mature trees and hiking trails known as the “Western Corner.” Since 1938, the Village of Kings Point has leased the entire park to the Great Neck Park District, with the understanding that it would be maintained as a “natural and scenic park.” In 1946, the Village and Park District executed an addendum to that lease, excluding the Western Corner, so that the Village can use it as a pistol range for local police and for certain storage of highway materials and supplies. In 1966, the State Comptroller informed the Village that its lease required State legislative approval, which it received the following year. For many years after, the Western Corner remained relatively undisturbed by the Village which erected only a couple of structures, one of which was about 1,700 square feet and used to store road salt.
Things changed in 2008, when the Village adopted a proposal to deforest, re-grade and enclose the Western Corner. The Village intended to build a 12,000 square foot Department of Public Works (“DPW”) facility, a diesel truck garage, a road-shop sign, administrative offices, crew quarters, and pave an asphalt roadway and parking area. No State legislative authority was sought for this project. In reaction, certain residents brought an action against the Village, its Mayor and its Board of Trustees, seeking to enjoin both the new proposal, as well as the Village’s current use of the Western Corner for storage of highway supplies as “unlawful uses of parkland in violation of the common law ‘public trust doctrine.’” Under the public trust doctrine, State legislative approval is required before parkland can be alienated or used for an extended period for non-park purposes. The State joined in this action, but only with respect to the DPW’s new proposed project — not the existing use. Capruso v. Village of Kings Point, 23 N.Y.3d 631 (2014).
Both plaintiffs and the State moved for summary judgment, and in June 2011 the Supreme Court granted the motion, permanently enjoining the Village from proceeding with the DPW facility project, and enjoining the Village from obstructing existing access to the Western Corner without explicit and specific approval from the State Legislature. It also directed the Village to remove all materials, equipment and physical alterations including structures under their control from the Western Corner. The Appellate Division affirmed this Order, and the Village appealed to the Court of Appeals, New York’s highest court.
The Village conceded many of the material facts and issues in this case: (1) that the Western Corner is dedicated parkland; (2) that the present and proposed uses have not been authorized by the State Legislature; (3) that the State’s legislative approval is required when there is a substantial intrusion on parkland for non-park purposes; (4) that the present and proposed uses constitute substantial intrusions on park land for non-park purposes.
The Village’s only argument was that the actions brought by plaintiffs and the State are time-barred. With respect to the current use of the Western Corner, the Village argued that because highway materials and supplies have been stored there since the lease addendum of 1946, any challenge to such use must have been made within six years therefrom, under CPLR 312(1). With respect to the proposed use, the Village argued that the proposed plan amounts to “nothing more than a change in the nature and scope of an on-going non-park use,” and therefore barred by the statute of limitations in the same respect as the existing use.
The Court first addressed the proposed plan. The proposed plan involves “the construction of a DPW facility measuring some 12,000 square feet in area, re-grading and paving of access roads, destruction of numerous mature trees and removal of hiking trails.” This is not a mere “change in the nature and scope of a road salt storage facility.” The current challenge to the project comes within six years of adoption of the proposal, and is therefore not barred by the statute of limitations.
As to the existing use, the Court applied the “continuous wrong doctrine” in rejecting defendants’ argument. The “continuous wrong doctrine” tolls the statute of limitations in certain cases such as nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed. The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass. The repeated offenses are treated as separate rights of action and the limitations period begins to run as to each upon its commission.
The Village argued that the doctrine is inapplicable in cases where the violations are “immediately discernible,” meaning that the traditional statute of limitations should apply when the violation is in plain sight. The Court rejected this argument too, holding that “it would be unreasonable to expect ordinary citizens who use . . . parks to know whether a particular use by a municipality has received approval by the State Legislature and whether municipal infrastructure located on parkland is intended to serve the park or public areas outside the park.” As a result, the order of the Appellate Division, mandating the Village remove the existing use, and granting a permanent injunction against the proposed use was affirmed.
Same-Sex Marriage Allowed On Farm
A State Human Rights Complaint was filed against an upstate New York farm and its two married owners, for discrimination after they refused to rent their farm to the McCarthys, a same-sex couple seeking a venue for their wedding ceremony and reception. Cynthia and Robert Gifford own Liberty Ridge Farm, a popular wedding venue which has a three story barn used for many events, including wedding receptions. The third floor of the barn is also used as the Giffords’ primary residence.
In September 2012, after having seen the farm online, Melisa MCarthy called and spoke with Mrs. Gifford to inquire as to booking their farm for their wedding. All was well until Melisa referred to her fiancé as a “she,” at which time Mrs. Gifford plainly stated that this was not going to work because they “do not hold same sex marriages there on the barn.” Melissa challenged Mrs. Gifford, asking whether that was legal. Mrs. Gifford answered that it is a private business, and thus, legal. The two women, Melisa and Jennifer, tested this assertion in the State Division of Human Rights, and won.
Article 15 of the New York Executive Law, in pertinent part, makes it an unlawful discriminatory practice for:
any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation . . . because of the . . . sexual orientation . . .of any person, directly or indirect, or refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof . . . or that the patronage or custom thereat of any person of or purporting to be of any particular. . . sexual orientation . . . is unwelcome, objectionable or not acceptable, desired or solicited.” See Human Rights law § 296.9(2)(a).
The Giffords admit that they did not allow the two to marry at the farm because it was their policy not to allow same-sex marriages. The issue then became, whether the farm was a place of “public accommodation,” or whether it was “distinctly private. The Human Rights Law defines the term “public accommodation,” which includes “any place where food is sold for consumption on the premises,” places “where beverages of any kind or retained for consumption on the premises” as well as “ wholesale and retail stores and establishments dealing with goods or services of any kind.” Human Rights Law § 296.9(2). The law provides an exception, however, for places which are “distinctly private.” The Court of Appeals, speaking on this issue, has held that a business that provides services to the public even on private premises is a place of public accommodation because “such places are generally open to all comers.” Cahill v. Rosa, 89 N.Y.2d 14, 21 (1996).
Here, the record demonstrated that the farm was generally open to all comers. They hosted pick your own blueberry and raspberry events, had a corn maze, a market where it sold produce which is harvested from the farm, markets reception venues, event locations, catering services, parking spaces, transportation via a trolley from the parking lot to an event venue in the farm, and even event planning and coordination. The farm provides both goods and services to the public.
In support of their argument that the business is distinctly private, the Giffords’ main argument was based on the fact that the barn is also their private home, and therefore distinctly private. This is not the case however. Although true that they do live on the third floor of the barn, the barn is advertised on the farm’s website as being open all year round to the public for parties, business meetings, holiday gatherings, retreats and weddings. Further, respondents have no screening process for applicants other than sexual orientation. They do not inquire into a couple’s faith, position on same-sex marriage, political beliefs, or even whether the wedding ceremony is a religious one.
As a result, the Division of Human Rights held that the farm was a place of “public accommodation” and its policy of not allowing same-sex marriages on site violated the State Human Rights Law. The couple were awarded $1,500 each, for mental anguish suffered as a result of the unlawful discrimination, and a $10,000 fine payable to the State of New York, was imposed on the Giffords.