Gonzalez v. Mackler , 19 A.D.2d 229 ( 1963 )

McNally, J.

In an action for personal injuries the infant plaintiff has been nonsuited presenting the question whether in any aspect the liability of the defendants involves issues of fact.

On April 20,1959 plaintiff, about 15 years of age, a pupil and innocent bystander, was struck by a rubber-tipped wooden pointer thrown by a second pupil and intended for a third pupil and sustained extensive and permanent injuries to his left eye. The classroom was equipped with 8 to 10 desks each seating two pupils. The class, which included the infant plaintiff, was composed of mentally retarded children ranging from about 14% to 16 years.

Defendant Michael M. Mackler, who was licensed to teach mentally retarded children, was the teacher in charge. He taught the class all subjects and in that regard the method of teaching this class differed from that applicable to regular classes. On the day of the occurrence Mackler absented himself from the classroom for about one-half hour to attend to other school duties. He did not appoint a monitor from one of the class; apparently he informed the teacher of the adjoining classroom of his departure. No one was in charge of the class during Mackler’s absence. In the interval an altercation occurred between two pupils, a boy seated with the infant plaintiff and a girl. The verbal portion of the altercation lasted about 10 minutes, at the end of which the girl seized the pointer and threw it in the direction of her opponent, striking instead the infant plaintiff.

The nonsuit entitled plaintiff to the most favorable inferences flowing from the evidence adduced. (Rivera v. Board of Educ., 11 A D 2d 7.) Whether the occurrence was proximately related to the absence of Mackler and the omission to supply supervision in the interval involves issues of fact. (Lopes v. City of New York, 4 A D 2d 48, 52, affd. 4 N Y 2d 738.) The jury would have been enabled to find that if supervision had been supplied the verbal exchange would not have occurred and in any event would have been suppressed before it culminated in violence. (Cf. Curcio v. City of New York, 275 N. Y. 20, 24.) Distinguishable and inapplicable are cases involving unforeseeable, spontaneous and instantaneous acts of violence. (Ohman v. Board of Educ., 300 N. Y. 306; Blume v. City of Newburgh, 291 N. Y. 739; Peterson v. City of New York, 267 N. Y. 204; Wilber v. City of Binghamton, 271 App. Div. 402, affd. 296 N. Y. 950; Chmela v. Board of Educ., 17 A D 2d 826; Coulter v. Roman Catholic Church of St. Ignatius, 16 A D 2d 653.)

Defendants’ duty to supervise the class including the infant plaintiff cannot be gainsaid. (Lopes v. City of New York, supra.) It may well be that Mackler’s many duties prevented him personally from supplying the required general supervision during the interval of his absence. That is a relevant factor on the scope of his duty in that regard but does not affect the duty of the defendant Board of Education of the City of New York to furnish adequate general supervision. (Germond v. Board of Educ., 10 A D 2d 139.) Relevant also is Mackler’s omission to appoint one of the class to supervise during his absence. Moreover, on the duty of general supervision, the jury was entitled to consider the composition of the class. Here involved were adolescent, mentally retarded children who, although not delinquent or incorrigible, the jury could have found did not have as good judgment, discrimination and control as other adolescent children of the same age.

The judgment dismissing the complaint should be reversed, on the law and on the facts, and a new trial directed, with costs to abide the event.