Bell v. Board of Education , 646 N.Y.S.2d 499 ( 1996 )

—Judgment, Supreme Court, Kings County (Randolph Jackson, J.), entered on or about October 17,1994, which, after a jury trial, awarded plaintiff $2,250,000, reversed, on the law, without costs, and the complaint dismissed.

This action for damages arises from the rape of plaintiff Scupella Bell, then a twelve-year-old schoolgirl, by acquaintances John Gibson and Chivelle Stallworth on June 3, 1988. On that day, plaintiff and her class were conducting school activities at a park located several blocks from her school. Plaintiff left the park at noon to lunch at a nearby pizza shop. Plaintiffs teacher noted her absence during a head-count at the designated departure time of 12:30, waited and searched the park for her in vain for thirty minutes, and visited plaintiff’s home, located several blocks from the park, before returning to school. When plaintiff returned to the park and discovered that her class had returned to school, she decided to return home instead. Meeting Gibson and Stallworth on this brief journey, she accompanied them for 30 to 45 minutes, by her testimony under duress, to Stallworth’s house, where the rape occurred.

Plaintiff sued the Board of Education of the City of New York for damages arising from the rape, claiming that it had failed in its duty to supervise her during a school activity. Following trial, a jury found plaintiff 25% liable and the Board 75% liable for plaintiffs injuries, and assessed total damages of $3 million. The Board appealed.

We reverse. While we have grave doubts about the jury’s finding that the Board failed in its duties of supervision in this case, we need not decide that issue. Even assuming such a failure, the unforeseeable criminal conduct of Gibson and Stall-worth constituted a superseding tortious act that absolved the Board of any culpability for plaintiffs injuries (Mirand v City of New York, 84 NY2d 44, 49-50). Concur — Murphy, P. J., Ross and Tom, JJ.