Ellis v. Mildred Elley School Inc., 245 A.D.2d 994 (1997)
667 N.Y.S.2d 86, 123 Ed. Law Rep. 838, 1997 N.Y. Slip Op. 11421
245 A.D.2d 994
Supreme Court, Appellate Division, Third
Department, New York.
Dean ELLIS, Appellant,
v.
MILDRED ELLEY SCHOOL INC., Respondent.
Dec. 31, 1997.
Student, who was stabbed during altercation with another
student, brought negligence action against business
school, alleging it breached its duty to protect him from
dangerous conduct of other student. The Supreme Court,
Albany County, Keegan, J., granted school’s motion for
summary judgment. Student appealed. The Supreme
Court, Appellate Division, Mikoll, J.P., held that: (1)
nondegree granting business school was functional
equivalent of college such that it was not a guarantor or
insurer of safety of its students, and (2) school was not on
notice of likelihood of dangerous conduct by other
student.
Affirmed.
Attorneys and Law Firms
seen looking through plaintiff’s book bag. An argument
and physical confrontation ensued. Plaintiff and Miller
were separated by defendant’s executive director, Robert
Flynn, who had been summoned by defendant’s Student
Services Coordinator, Patricia Frazier. **87 Miller was
escorted to his classroom by Flynn; Frazier took plaintiff
to her office, where she attempted to calm him and
inquire into the nature of the dispute. Shortly thereafter,
Miller appeared at Frazier’s office, and the two men
engaged in a second physical confrontation, during which
Miller stabbed plaintiff.
Plaintiff commenced this negligence action against
defendant, alleging in essence that defendant breached its
duty to protect plaintiff from the dangerous conduct of
Miller. After completion of discovery and examinations
before trial, defendant moved for summary judgment.
Supreme Court granted defendant’s motion, finding that
plaintiff failed to establish that defendant breached a legal
duty owed to plaintiff. We affirm.
To prevail upon a negligence claim, plaintiff must
establish the existence of a legal duty, a breach of that
duty, proximate causation and damages. The existence of
a legal duty presents a question of law for the court
(Eiseman v. State of New York, 70 N.Y.2d 175, 518
N.Y.S.2d 608, 511 N.E.2d 1128; Talbot v. New York Inst.
of Technology, 225 A.D.2d 611, 639 N.Y.S.2d 135).
[1]
**86 Pattison, Sampson, Ginsberg & Griffin P.C.
(Michael E. Ginsberg, of counsel), Troy, for appellant.
Carter, Conboy, Case, Blackmore, Napierski & Maloney
P.C. (Mark A. Rubeo, of counsel), Albany, for
respondent.
Before MIKOLL, J.P., and YESAWICH, PETERS,
SPAIN and CARPINELLO, JJ.
Opinion
*994 MIKOLL, Justice Presiding.
Appeal from an order of the Supreme Court (Keegan, J.),
entered February 19, 1997 in Albany County, which
granted defendant’s motion for summary judgment
dismissing the complaint.
Plaintiff, age 31, and James Miller, age 48, were both
*995 enrolled students at defendant, a business school. On
November 17, 1994, plaintiff confronted Miller in the
school cafeteria about an allegation that Miller had been
Supreme Court first considered what, if any, duty was
owed to plaintiff by virtue of the relationship between
defendant, as a school, and plaintiff, as an enrolled
student. It is well-settled that colleges “have no legal duty
to shield their students from the dangerous activity of
other students” (Eiseman v. State of New York, supra, at
190, 518 N.Y.S.2d 608, 511 N.E.2d 1128). This principle
derives from the rejection of the notion that a college
stands in loco parentis so as to trigger a special duty of
protection. Implicit in this rejection is recognition of the
many factors which distinguish the relationship between a
college and its students from that of lower-level learning
institutions and their students. One such factor is the age
and maturity of the students and the concomitant need for
closer supervision of younger children (see, Talbot v. New
York Inst. of Technology, supra; Mintz v. State of New
York, 47 A.D.2d 570, 362 N.Y.S.2d 619).
[2]
We find that Supreme Court properly considered
defendant as the “functional equivalent” of a college.
Much of plaintiff’s argument on this point rests on the
claim that defendant is not *996 a “college” within the
meaning of Education Law § 2(2), but rather is a
non-degree granting business school, and that, as such, it
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Ellis v. Mildred Elley School Inc., 245 A.D.2d 994 (1997)
667 N.Y.S.2d 86, 123 Ed. Law Rep. 838, 1997 N.Y. Slip Op. 11421
cannot avail itself of the rule that a college is neither a
guarantor nor insurer of the safety of its students (see,
Eiseman v. State of New York, supra). This argument is
eminently unpersuasive, ignoring as it does the rationale
behind the relaxed standard applicable to colleges and the
parallel conditions existing at defendant.
[3]
The next inquiry undertaken by Supreme Court was
whether defendant breached its duty, as a property owner,
to exercise reasonable care for the protection of persons
lawfully on its premises from reasonably foreseeable
criminal or dangerous acts of third persons. This inquiry,
in turn, entails a determination as to whether the property
owner has either actual or constructive notice of the
likelihood of dangerous conduct by a third person (see,
Nallan v. Helmsley–Spear Inc., 50 N.Y.2d 507, 519, 429
N.Y.S.2d 606, 407 N.E.2d 451; Karp v. Saks Fifth Ave.,
225 A.D.2d 1014, 639 N.Y.S.2d 575; Provenzano v.
Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 593
N.Y.S.2d 80).
[4]
Plaintiff contends that the record supports his claim that
defendant was on requisite notice by virtue of the initial
altercation between plaintiff and Miller, a threat made to
plaintiff by Miller immediately prior to the second fight, 1
prior occasions when Miller had allegedly “spoken out”
inappropriately in class and his claim that Miller always
carried a knife and had expressed his readiness to use it.
not ask for any assistance with respect to Miller after the
first altercation. In fact, moments before Miller
reappeared, plaintiff asked Frazier if he could leave her
office and return to the cafeteria. Defendant’s employees
testified that they had no prior knowledge of any
complaints or concerns regarding Miller, including any
allegation that he carried a knife. As to defendant’s notice
by virtue *997 of the earlier altercation, plaintiff
established only that defendant’s employees became
aware of a physical struggle in the cafeteria between
himself and Miller; they had no knowledge or information
as to its cause or who the aggressor may have been. The
second altercation occurred a very short time after the
first, and without warning. Miller’s alleged verbal threat,
if it occurred at all, was made moments before the second
altercation commenced, presenting defendant with no
opportunity to act in response thereto. “[S]chool
personnel cannot reasonably be expected to guard against
* * * an injury caused by the impulsive, unanticipated act
of a fellow student” (Mirand v. City of New York, 84
N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263; see,
Ruchalski v. Schenectady County Community Coll., 239
A.D.2d 687, 656 N.Y.S.2d 784; Silver v.
Sheraton–Smithtown Inn, 121 A.D.2d 711, 504 N.Y.S.2d
56).
ORDERED that the order is affirmed, with costs.
[5]
While ordinarily issues of actual or constructive notice,
and the consequent foreseeability of harm, present
questions of fact, our careful review of the record
supports Supreme Court’s conclusion that no such
material issues of fact existed as to whether **88
defendant had actual or constructive notice of any danger
to plaintiff.
The record discloses that plaintiff admitted that he never
informed defendant’s employees about any prior
problems with Miller before the date of his injury, never
informed them that Miller carried a knife, and that he did
YESAWICH, PETERS, SPAIN and CARPINELLO, JJ.,
concur.
All Citations
245 A.D.2d 994, 667 N.Y.S.2d 86, 123 Ed. Law Rep.
838, 1997 N.Y. Slip Op. 11421
Footnotes
1
Plaintiff testified at his examination before trial that, while he was in Frazier’s office, Miller appeared in the doorway and said “I
am going to get you, Big Guy”. Frazier testified that Miller said nothing before entering her office and resuming the struggle with
plaintiff.
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Ellis v. Mildred Elley School Inc., 245 A.D.2d 994 (1997)
667 N.Y.S.2d 86, 123 Ed. Law Rep. 838, 1997 N.Y. Slip Op. 11421
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
Preparing a Case Brief
Reading the Case:
Most often, you will be reading cases on Westlaw, which can be accessed online
through the SUNY Canton library.
When you view a case on Westlaw, it is important to know where the actual text
of the case begins. At the very beginning of the text, immediately under the
caption, you will see several paragraphs which are not actually the case itself.
Westlaw is run by a publishing company—West Publishing. The first paragraph
under the caption is a summary of the case written by an employee of a
publishing company. It usually begins with the words “summary” or “holding.”
These words were not written by the judge so they are not a part of the case. The
“summary” is intended as a research aid. On rare occasions, the summary can
even be incorrect or misleading. It is never appropriate to quote from that
summary.
Next, a heading appears which states “West Headnotes.” These headnotes are
also not a part of the case. These headnotes are research tools created by the
publisher. If you were to click on any of the hyperlinked headnotes, you would
see a listing of every case that discussed that particular issue – which would
probably number in the thousands.
The actual decision begins after the judge is identified. In the sample case,
attached, you will see “SMITH, Justice.” Sometimes it will just say “Smith, J.” The
“J” always stands for Judge or Justice. Sometimes the words “Per Curiam” appear.
“Per Curiam” refers to a decision handed down by the court as a whole, without
identifying any particular judge as the author.
Briefing a Case
Different lawyers, professors, judges, etc., may use different formats for briefing.
For this class, please use the following categories when briefing a case: Name and
Citation; Facts; Procedural History; Issue; Holding; Reasoning.
Name and Citation: The name of the case contains the names of the parties,
which you would usually refer to simply by last name. If it’s a criminal case, one
party will be “People” or “State” or “State of New York” (or other appropriate
state name). In a Westlaw case, the citation is typically near the top of the first
page and will say “cite as” followed by a series of numbers and letters. Those
numbers and letters are the case citation. The citation lets you know where you
can find the full case written. Court decisions, at certain levels, are published in
books called “reports” or “reporters.” The first number in the citation is the
volume number. The letters are the abbreviation for the particular reporter in
which the case will be found. The last number refers to the page number in that
volume in that reporter. So, 25 S.Ct 100 would mean the case is located in volume
25 of the Supreme Court reporter on page 100.
Facts: This is the relevant factual story of the case. In many cases—particularly
longer cases—it can be difficult to determine which facts to leave in and which
facts to leave out. Think about which facts are really essential in order for a
person reading your brief to know what happened in the case. Remember, you
want to include the facts that tell the story.
Procedural History: The cases you brief will typically be appellate cases, which
means they started in one court, there was a decision of some sort, and they
were then appealed to another court. Sometimes they will have been appealed to
more than one court. The procedural history involves stating briefly what
happened in each court. That is all that belongs in the procedural history section.
Issue: The issue is a yes or no question that the court is being asked to answer. It
is important to make the issue specific to the case. If it is too general, it will not be
helpful. Sometimes (but not always), you will see language that says “The issue
before the court is …” or “The question this court must answer is …”. Beware,
however, that you may need to add to the court’s statement of the issue for your
brief in order to make the specific issue clear.
Holding: The holding has two parts. The first part is that it must be an answer to
the question posed in the “Issue” section. For example, if the Issue is: “Did the
lower court err in failing to provide the defendant with Ben & Jerry’s Phish Food
ice cream?”, the Holding would be “Yes, the lower court erred in failing to provide
the defendant with Ben & Jerry’s Phish Food ice cream” (or “No”, if that’s how the
court decided). The second part of this section is to state whether the lower
court’s decision was Affirmed, Reversed and/or Remanded. “Affirmed” means the
appellate court agreed with the lower court; “reversed” means the appellate
court disagreed with the lower court; and “remanded” means the case was sent
back to the lower court. Usually, “reversed” and “remanded” go together.
Reasoning: This will probably be the most difficult part of the case brief. In this
section, you need to summarize the court’s basis for reaching its decision. What
steps did the court go through? What chain of thought did it follow? You will need
to clearly understand the reasoning of the court and then put it into your own
words. If certain wording is important and you wish to quote from the decision
itself, be sure to put the quote in quotation marks and indicate the page number.
General Guidelines
Don’t overly rely on quoting from the case itself. I want you to put things into
your own words as much as possible. It’s sometimes tempting for students to
simply cut and paste from a court decision, but this frequently ends up being
jumbled. Additionally, and most importantly, I want you to be able to read,
comprehend, and express that comprehension by summarizing the case in your
own words. If you do quote from the court decision, you need to be sure to put it
in quotation marks and indicate the page number from which you are quoting .
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