• Key point. Churches may be liable on the basis of negligent supervision for acts of child molestation occurring in restrooms.
A New York court found a school liable on the basis of negligence for the molestation of a kindergarten student in a school restroom. The court’s ruling will be relevant to churches and church—operated schools. The student was permitted to go to the bathroom alone, where he was molested by an older student at the school. The child’s parents sued the school, and a jury found that the child’s kindergarten teacher had been negligent in allowing the child to go to the bathroom unaccompanied. The child was awarded $500,000 in damages. The school appealed, and state appeals court upheld the finding of negligence. The court began its opinion by noting that “[w]hile we recognize the general rule that educational institutions are not the insurers of the safety of their students and cannot be held liable for every instance in which one pupil injures another, schools are, however, under a duty to adequately supervise their students and are liable for foreseeable injuries which are [directly] caused by the absence of such supervision.” The court noted that this duty “derives from the fact that the school, once it takes over physical custody and control of the children, effectively takes the place of their parents and guardians.”
The court noted that in this case the child was sent from his classroom (while class was in session) to the school bathroom, alone and unsupervised, where the assault occurred. Further, “[t]his was done despite two separate school memoranda, circulated amongst the school’s staff, which are explicitly provided security procedures to the contrary.” The first memoranda stated that “teachers are instructed to send all pupils under third grade to the bathroom with a partner.” The second memorandum stated that “to further insure security any child leaving your room or corridor area must have a pass. Young children should go in pairs.” A school principal testified that the reason for these rules is to make young children more secure from attack by older students. She also stated that she considered the bathroom to be a place where young children “are particularly vulnerable.”
The court concluded that the school “did not act with ordinary prudence in allowing the five—year old plaintiff to proceed to the bathroom alone.” The school insisted that it could not have been negligent since it was not aware of any previous acts of molestation occurring in its bathroom. The court disagreed. It acknowledged that schools generally must have notice of prior similar misconduct to be liable for assaults upon older students, since school personnel “cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily.” However, in the case of a young child who is sent by his teacher to a public bathroom unescorted, the potential danger to the child “can be reasonably foreseen and could have been prevented by adequate supervision of the school.” As a result, “while it would be reasonable to allow high school students to go to a public bathroom unaccompanied, the same practice surely does not apply to a five—year old child, who is unable to resist, is defenseless against attack, and poses an easy target for sexual molestation or other assaults. Stated another way, even the most prudent parent will not guard his or her teen at every moment in the absence of some foreseeable danger of which he or she has notice; but a five— year old child in a public bathroom should be supervised or, at the very least, be accompanied by another child.”
What is the relevance of this case to churches and church schools? Consider the following: First, it illustrates the risk that churches and schools face when sending young children to the restroom unescorted. The court suggested that sending young children to the restroom in pairs will reduce the risk of negligence. Second, the court placed great emphasis on the fact that the school had adopted policies prohibiting young children from going to the restroom unescorted. This demonstrates the importance of adhering to policies-especially when violation of a policy may lead to personal injury. Third, the court acknowledged that schools (and presumably churches) cannot be responsible for the safety of older children at every moment, and that sending adolescents to a restroom unescorted will not constitute negligence absent knowledge of prior assaults occurring in the restroom. Fourth, churches and schools can be liable on the basis of negligence for the molestation of young children who are sent to a restroom unescorted, even if there is no knowledge of prior assaults occurring in the restroom, since “where the duty to supervise is mandatory, notice is not an issue.” Garcia v. City of New York, 646 N.Y.S.2d 508 (A.D. 1996). [ Negligent Supervision]
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