Donohue v. Copiague Union Free School District

Suozzi, J. (dissenting).

In my view, the complaint states a valid cause of action.

The first cause of action sounds in negligence and malpractice and alleges, inter alia, that the defendant school district was under a duty to educate the plaintiff and qualify him for a high school graduation certificate and that the defendant failed to properly perform that duty.

*40 As a second cause of action, plaintiff alleges the breach of a constitutional duty under section 1 of article XI of the State Constitution. This provision of the Constitution states: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.”

In dismissing the first cause of action, the Special Term and the majority rely on a decision of an appellate court in California which dismissed a very similar cause of action (Peter W. v San Francisco Unified School Dist., 60 Cal App 3d 814). An examination of the decision in Peter W. reveals that the cause of action was dismissed because of two distinct policy considerations (Peter W. v San Francisco Unified School Dist., 60 Cal App 3d 814, 824-825, supra):

1. "[TJhat the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.”

2. "To hold [schools] * * * to an actionable 'duty of care,’ in the discharge of their academic functions, would expose them to the tort claims—real or imagined—of disaffected students and parents in countless numbers * * * The ultimate consequences, in terms of public time and money, would burden them—and society—beyond calculation.”

In dismissing the second cause of action for breach of a constitutional duty, the Special Term relied primarily on two New York Court of Appeals cases (Steitz v City of Beacon, 295 NY 51 and Moch Co. v Rensselaer Water Co., 247 NY 160 ).

In Moch, the defendant, a waterworks company, contracted with a city to supply water for various needs, including service at fire hydrants. During the period that the contract was in force, a building caught fire, spread to plaintiff’s warehouse and destroyed it. Plaintiff brought suit against the water company for failing to supply adequate water pressure and failing to stop the spread of the fire before it reached plaintiff’s warehouse.

In dismissing a cause of action for breach of a statutory duty (as well as for breach of contract and for common-law tort), the court stressed that the statutory duty was merely one to furnish water and that there was nothing in the statutory requirements to "enlarge the zone of liability where *41 an inhabitant of the city suffers indirect or incidental damage through deficient pressure at the hydrants” (Moch, supra, p 169 ).

In Steitz (supra, p 54 ), plaintiff brought an action against the defendant city to recover for damage to property from fire, based on a city charter which provided that the city " 'may construct and operate a system of waterworks’ ” and that " 'it shall maintain fire, police, school and poor departments.’ ” In dismissing the cause of action, the Court of Appeals stated (p 55):

"Quite obviously these provisions were not in terms designed to protect the personal interest of any individual and clearly were designed to secure the benefits of well ordered municipal government enjoyed by all as members of the community. There was indeed a public duty to maintain a fire department, but that was all, and there was no suggestion that for any omission in keeping hydrants, valves or pipes in repair the people of the city could recover fire damages to their property.

"An intention to impose upon the city the crushing burden of such an obligation should not be imputed to the Legislature in the absence of language clearly designed to have that effect.”

Finally, Special Term noted that the commencement of this action had received substantial attention in educational circles and the news media and that this factor, coupled with the recent adoption of 8 NYCRR 3.45 by the Board of Regents, effective June 1, 1979, indicated that this case posed a grave policy question which should be passed upon by appellate courts. The regulation adopted by the Board of Regents states: "3.45 Diplomas. No high school diploma shall be conferred which does not represent four years or their equivalent in grades above grade eight, and- no such diploma shall be conferred upon a pupil who has not achieved a passing rating in each of the basic competency tests established by the commissioner.”

Initially, it must be emphasized that the policy considerations enunciated in Peter W. (60 Cal App 3d 814, supra) do not mandate a dismissal of the complaint. Whether the failure of the plaintiff to achieve a basic level of literacy was caused by the negligence of the school system, as the plaintiff alleges, or was the product of forces outside the teaching process, is really a question of proof to be resolved at a trial. The fear of *42 a flood of litigation, perhaps much of it without merit, and the possible difficulty in framing an appropriate measure of damages, are similarly unpersuasive grounds for dismissing the instant cause of action. Fear of excessive litigation caused by , the creation of a new zone of liability was effectively refuted by the abolition of sovereign immunity many years ago, and numerous environmental actions fill our courts where damages are difficult to assess. Under the circumstances, there is no reason to differentiate between educational malpractice on the one hand, and other forms of negligence and malpractice litigation which currently congest our courts.

Over and above these preliminary observations, there are additional reasons which dictate against dismissal of the complaint at this stage and which were not discussed by Special Term or by the majority.

The complaint herein is not drafted solely in terms of educational malpractice, i.e., the failure of the school system to successfully teach plaintiff at a certain level. The complaint also charges the following: (1) That the plaintiff failed various subjects; (2) That the defendant was aware of these failures; and (3) That the defendant failed in its duty to ascertain the reason for these failures and to prescribe appropriate corrective measures, if necessary.

The language of the complaint is illustrative: "[T]he defendant * * * gave * * * failing grades in various subjects; failed to evaluate the plaintiff’s mental ability and capacity to comprehend the subjects being taught to him at said school; failed to take proper means and precautions that they reasonably should have taken under the circumstances; failed to * * * psychologically test the plaintiff in order to ascertain his ability to comprehend and understand such subject matter”.

That the plaintiff was failing various subjects is readily demonstrable from his high school transcript, which is part of the record and which has numerous course failures (grades below 65, the listed passing grade) designated thereon, including two in English. Nor can the defendant claim that these failing grades did not violate any educational standard. It is true that the regulation of the Board of Regents establishing competency tests and passing grades thereon as a requirement for receipt of a diploma (8 NYCRR 3.45) will not be effective until June 1, 1979. However, it should be emphasized that at present, and during the plaintiff’s four years at the defend *43 ant’s high school, the State Commissioner had a regulation in effect which provided (8 NYCRR 103.2):

"103.2 High school diplomas. In order to secure a State diploma of any type the following requirements must be met:

"(a) The satisfactory completion of an approved four-year course of study in a registered four-year or six-year secondary school, including English, social studies including American history, health, physical education and such other special requirements as are required by statute and (Regents regulations) established by the Commissioner of Education.”

Anyone reading the plaintiff’s high school transcript would be hard pressed to describe his work as a "satisfactory completion” of a course of study.

Having established that the plaintiff was failing numerous courses, which fact was known to school authorities, the crucial question to be resolved is whether the school had a duty under these circumstances to do more than merely promote this plaintiff in a perfunctory manner from one year to the next.

In this regard, former section 4404 of the Education Law, which was in effect at the time the plaintiff was attending defendant’s high school, is crucial. Subdivision 4 of that statute provided, in pertinent part: "The board of education of each school district shall cause suitable examinations to be made to ascertain the physical, mental and social causes of * * * 'under-achievement’ of every pupil in a public school, not attending a special class, who has failed continuously in his studies or is listed as an 'under-achiever’. Such examinations shall be made in such manner and at such times as shall be established by the commissioner of education, to determine if such a child is incapable of benefiting through ordinary classroom instruction, and whether such child may be expected to profit from special educational facilities. The commissioner of education shall prescribe such reasonable rules and regulations as he may deem necessary to carry out the provisions of this paragraph.”

Section 203.1 of the commissioner’s regulations provides:

"Children who fail or under-achieve. * * *

"(2) A pupil who 'has failed continuously in his studies’ within the meaning of subdivision 4 of section 4404 of the Education Law is one who has failed in two or more subjects of study for a year.”

*44 An examination of the plaintiff's transcript indicates that he came within the definition of a pupil who "failed continuously”. Despite this fact, the complaint alleges that the defendant "failed to * * * psychologically test the plaintiff in order to ascertain his ability to comprehend and understand such subject matter”, which was in direct contravention of the mandate of subdivision 4 of former section 4404 of the Education Law.

The plaintiff has, therefore, shown the existence of a mandatory statutory duty flowing from the defendant to him personally and has alleged the breach thereof by the defendant. To dismiss the complaint, as the majority proposes, without allowing the plaintiff his day in court, would merely serve to sanction misfeasance in the educational system.

In my view, the negligence alleged in the case at bar is not unlike that of a doctor who, although confronted with a patient with a cancerous condition, fails to pursue medically accepted procedures to (1) diagnose the specific condition and (2) treat the condition, and instead allows the patient to suffer the inevitable consequences of the disease. Such medical malpractice would never be tolerated. At the very least, a complaint alleging same would not be dismissed upon motion. In the case at bar, the plaintiff displayed, through his failing grades, a serious condition with respect to his ability to learn. Although mindful of this learning disability, the school authorities made no attempt, as they were required to do, by appropriate and educationally accepted testing procedures, to diagnose the nature and extent of his learning problem and thereafter to take or recommend remedial measures to deal with this problem. Instead, the plaintiff was just pushed through the educational system without any attempt made to help him. Under these circumstances, the cause of action at bar is no different from the analogous cause of action for medical malpractice and, like the latter, is sufficient to withstand a motion to dismiss.

Finally, it should be noted that even in Peter W. v San Francisco Unified School Dist. (60 Cal App 3d 814, supra), the California Appellate Court recognized that a cause of action for intentional and fraudulent misrepresentation, if properly pleaded, could withstand a motion to dismiss. Accordingly, even though the majority has chosen to affirm the dismissal of the complaint, that affirmance should be without prejudice to replead a cause of action for intentional misrepresentation.

*45 For the reasons heretofore set forth, I dissent and vote to deny that branch of the defendant’s motion which sought to dismiss the complaint for failure to state a cause of action. It should be noted that the defendant also moved to dismiss the complaint based upon the plaintiffs failure to file a timely notice of claim pursuant to section 3813 of the Education Law. Since the Special Term dismissed the complaint for failure to state a cause of action, it did not deal at all with the second branch of the defendant’s motion, i.e., the plaintiffs failure to serve a timely notice of claim. Accordingly, I would remand to Special Term for determination of that issue.

Rabin and Hawkins, JJ., concur with Damiani, J. P.; Suozzi, J., dissents and votes to reverse the order, deny the branch of defendant’s motion which sought to dismiss the complaint for failure to state a cause of action and remand the action to Special Term to determine whether plaintiff complied with section 3813 of the Education Law, with an opinion.

Order of the Supreme Court, Suffolk County, dated August 31, 1977, affirmed, without costs or disbursements.