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Plaintiff Fails to State a Cause of Action



The motion by defendant Board of Education of the Long Beach School District to dismiss the complaint for failure to state a cause of action is granted.

This is a pro se action for educational malpractice and the wrongful bringing of a neglect proceeding in the Family Court. Plaintiff and her husband have a 14 year old daughter who attends public school in Long Beach. Defendants are the Board of Education of the Long Beach School District and the Nassau County Department of Social Services (“DSS”).

By order the Judge granted DSS’ motion to dismiss the complaint on the ground of qualified immunity. By order dated January 2, 2007, Judge Jaeger denied Plaintiff’s motion for leave to reargue DSS’ motion to dismiss the complaint. The following facts concerning the initial report by the School District, DSS’ investigation, and the proceedings in Family Court, are taken from Judge Jaeger’s decision.

In early 2003, the school submitted a report to DSS concerning chronic absenteeism by the child. DSS investigated the report and on August 1, 2003 filed a neglect petition against the child’s parents with the Nassau County Family Court. The petition alleged that respondents had failed to supply their daughter with adequate education although they were financially able, or had been offered reasonable means, to do so. The petition further alleged that respondents had failed to provide their daughter with proper supervision or guardianship, and their failure to exercise a minimum degree of care impaired the child’s physical, mental and emotional health.

The family Court Act § 1012(f)(i)(A) defines “neglected child” as a child less than 18 years of age whose physical, mental, or emotional condition has been impaired as a result of the failure of his parent to exercise a minimum of care in supplying the child with adequate education, in accordance with part 1 of Article 65 of the Education Law, though financially able or offered financial or other reasonable means to do so. Part 1 of Article 65 of the Education Law refers to compulsory education. In particular, Education Law § 3205(1)(a) provides that a minor from 6 to 16 years of age shall attend upon full time instruction.

Specifically, the petition alleged that the child was absent without excuse 59 times during the period October, 2002 to March, 2003 and did not attend school at all from April to June, 2003. The petition further alleged that as a result of these absences, the child’s academic performance had suffered and she was failing several of her courses.

According to the petition, when confronted with her daughter’s absences, the child claimed that the child had been “verbally abused” by school personnel. The petition also stated that the child had told school officials that she planned to transfer her daughter to another school district but had not done so.

The Family Court held a fact finding hearing on the neglect petition and on April 21, 2004 issued its decision and order. The court found that beginning in the second grade, the School District had become concerned with the academic progress and her reading scores.

At the hearing, the mother claimed that the child’s absences were caused by harassment, which she had received from her teachers and the School District’s failure to place her in an appropriate learning environment. Marguerite also presented the testimony of a clinical psychologist to whom she had taken the child in December, 2002. The doctor diagnosed the child as having a panic or anxiety disorder and treated her during the period of absence.

The District now moves to dismiss the complaint on the ground of failure to state a cause of action. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”

As a matter of public policy, the courts will not second-guess the professional judgments of public school educators and administrators in selecting programs for particular students. In a case, the Court of Appeals noted that education of children is a “complex and often delicate process”. Moreover, schools offer a variety of educational programs, and the placement of particular students must be left to the educators and government officials who are professionally trained to carry out this function. Thus, there is no cause of action for educational malpractice, and a school district will not be held liable to a student for malpractice even if its educational placement of the student was totally inappropriate. Accordingly, the District’s motion to dismiss plaintiff’s claim for educational malpractice for failure to state a cause of action is granted.

Because plaintiff’s claim is based upon a report of child abuse or neglect, the court will begin by considering the broad immunity granted to reporters of such misconduct rather than the elements of any particular tort or legal theory. Section 419 of the Social Services Law provides that, Any person, official, or institution participating in good faith in the providing of a service[concerning reports of child abuse or maltreatment], the making of a report, the taking of photographs, the removal or keeping of a child pursuant to the, or the disclosure of child protective services information…shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. [T]he good faith of any such person, official, or institution required to report cases of child abuse or maltreatment or providing a service [concerning child abuse or maltreatment reports] shall be presumed, provided such person, official, or institution was acting in discharge of their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person, official, or institution.

This section provides a qualified immunity for child protective services officials who investigate charges of abuse or neglect and also mandatory reporters who in good faith report such misconduct. Moreover, the good faith of those required to report or provide services is presumed provided the officials are acting in discharge of their duties and within the scope of their employment, and they do not engage in gross negligence or willful misconduct. In enacting this statute, the Legislature determined that a qualified immunity from civil and criminal liability would remove “the fear of an unjust lawsuit for attempting to help protect a child”.

The Legislature deemed qualified immunity for officials required to report or investigate “indispensable” to further the strong public policy of protecting children.

Social Services Law § 413(1) sets forth an extensive list of persons and officials who are required to report cases of suspected child abuse or maltreatment. Because school officials are listed among the group of mandatory reporters, they are included within the group of officials protected by qualified immunity. There is no question that the School District officials who submitted the report of the child’s chronic absenteeism were acting within the scope of their employment. The only facts which plaintiff has alleged suggesting the School District’s lack of good faith concerns the District’s alleged failure to address the child’s educational needs. However, as noted by Judge, because there is no cause of action for educational malpractice, there is no basis for inferring bad faith on the part of the District.

Based upon the doctrine of qualified immunity, the School District’s motion to dismiss plaintiff’s claim for aiding DSS in the wrongful bringing of a neglect petition is granted.

Under the doctrine of respondeat superior, an employer may be vicariously liable for a tort committed by an employee while acting within the scope of employment. If the conduct of the employee is generally foreseeable, even an intentional tort may fall within the scope of employment. Thus, a school district will be liable if a teacher commits an intentional tort against a student in the course of the teacher’s employment.

The tort of intentional infliction of emotional distress requires: 1) extreme and outrageous conduct, 2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress, 3) a causal connection between the conduct and injury; and 4) severe emotional distress. The first element, outrageous conduct, serves the dual function of filtering out petty and trivial complaints and assuring that plaintiff’s claim of severe emotional distress is genuine. The element of outrageous conduct is particularly susceptible to determination as a matter of law. Unlike other intentional torts, intentional infliction of emotional distress does not proscribe specific conduct but imposes liability based on after-the-fact-judgments about the actor’s behavior. The element of extreme and outrageous conduct may also be described as “utterly reprehensible behavior”.

Because the standard is so broadly defined, the actor may not have notice of the precise conduct which the tort proscribes. However, the advantage of the tort’s broad reach is “flexibility” in redressing utterly reprehensible conduct. Thus, “the tort is as limitless as the human capacity for cruelty” (Id.)

As to the fourth element, that the emotional distress be severe, an objective standard applies. Thus, the emotional distress must be so severe that no reasonable person could be expected to endure it.

In determining the contours of proper conduct by a teacher, the court may be guided by the teacher’s duty of supervision towards her students. A teacher must exercise the same degree of care toward the students in the teacher’s custody as a reasonably prudent parent would exercise under comparable circumstances. Thus, a persistent pattern of verbal abuse by a teacher against a student may constitute utterly reprehensible conduct. However, under the reasonably prudent parent standard, a teacher must be free to chastise a student whose academic achievement falls short of expected levels of performance.

Giving plaintiff the benefit of every possible inference, the complaint does not allege extreme and outrageous conduct of any other teacher in the Long Beach School District. While the child may indeed be a sensitive child, the comment, even if characterized as a criticism, by her teacher was not so severe that she could not be expected to endure it. The District’s motion to dismiss plaintiff’s claim for intentional infliction of emotional distress is granted. Plaintiff’s motion for leave to appeal from Judge Jaeger’s order of January 2, 2007 is denied since no appeal lies from an order denying reargument.

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