The following submissions, in addition to any memoranda of law, were reviewed in preparing this Decision and Order: Defendant H.S.’s Notice of Motion, Affirmation & Exhibits 1 Plaintiff’s Affirmation in Opposition 2 Defendant H.S.’s Reply Affirmation 3 Defendant Brookville’s Notice of Motion, Affirmation & Exhibits 4 DECISION AND ORDER In this action plaintiff, Cynthia Summer, was struck and injured by defendant H.S., an autistic, 17 year-old student for whom Summer acted as a one-on-one aide at H.S.’s school, defendant Brookville Center for Children’s Services, Inc. It is not claimed that H.S. intentionally struck Summer or meant to do her harm. H.S. was known to impulsively violently flail her arms when excited or upset. Defendants now move for summary judgment pursuant to CPLR 3212, and the central issue before this court is whether H.S. can be held liable to Summer for her injuries. She cannot, because H.S. owed no duty of reasonable care to Summer due to the nature of their relationship. As a result, the motions are granted and the action is dismissed. BACKGROUND H.S. is a non-verbal, autistic student of the Levittown School District who attends the Brookville Center because of her special needs. Brookville Center is a private school for children, from pre-school to 21 years of age, who have intellectual and other developmental disabilities. H.S. can understand directions but not concepts or consequences. Her mother testified that “anything more than three words she really doesn’t understand.” H.S. is a big person, approximately 5’6″ and weighs over 300 lbs. H.S. exhibits physical symptoms stemming from her autism. When she is excited, angry or attempting to process ideas she flails her arms and/or stamps her feet, or otherwise acts out. In 2016, H.S. was having behavioral issues at school. When frustrated she flailed her arms and hit her desk and walls. Sometimes she threw things. As a result, at the beginning of the 2016-17 school year Summer was hired to act as a one-on-one aide for H.S. At Summer’s hiring interview with the school she was informed that H.S. “had become more aggressive” and that “due to her aggressive tendencies, that they felt they needed someone to kind of steer her back to focusing on what the task at hand was….” Summer understood when she was hired that H.S. could be “aggressive as far as throwing objects, flailing her arms, kicking.” Summer acted as H.S.’s aide throughout the 2016-17 school year. During that school year, H.S. was disruptive on several occasions, throwing items like her computer tablet and desks. Summer testified that H.S. had broken two desks before they gave her a table she couldn’t break. H.S. also acted out and kicked Summer once with a flailing leg, sending Summer to the floor. She once struck Summer in the face with a flailing arm (Summer went to a doctor to confirm her nose wasn’t broken). Summer testified that there were 10-15 other occasions that H.S. struck her with her arms or legs. “I got a lot of punches to the chest, just because I would be either standing next to her and…I would get, you know, the wind knocked out of me, possibly kicked.” Summer estimated that H.S. struck her with a closed fist ten times that year. Summer also saw H.S. strike staff members. All of these contacts would result from Summer flailing her limbs — “[j]ust arms jerking off in motion….free throwing…not consciously….just arms going up and down, out and whichever way.” Summer acted to protect other students from H.S. Summer would stay close to H.S. as she walked down a hall acting as a “barrier” to ensure H.S. would not strike others with flailing arms. In the classroom, she placed herself between H.S. and other students “so that [H.S.] did not accidentally take any of them out.” Summer continued to act as H.S.’s one-on-one aide the following 2017-18 school year. One school day in the classroom in September 2017, H.S. got excited and struck Summer in the face with a flailing arm, fracturing her jaw. Thereafter, Summer initiated this action to recover for her injuries. LEGAL ANALYSIS It is the moving defendant who has the burden to establish an entitlement to summary judgment as a matter of law. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). “CPLR §3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material facts on every relevant issue raised by the pleadings, including any affirmative defenses.” Stone v. Continental Ins. Co., 234 A.D.2d 282, 284 (2d Dept. 1996). Where the movant fails to meet its initial burden, the motion for summary judgment should be denied. U.S. Bank N.A. v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014). The drastic remedy of summary judgment should be granted only if there are no material issues of fact. Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974). Brookville Center argues that it is entitled to summary judgment because, among other reasons, the Workers’ Compensation Law bars Summer’s claim against it. See Workers’ Compensation Law §§11, 29(6). Summer applied for and has received Workers’ Compensation benefits as a result of the incident. Although Summer technically was a school district employee, Brookville Center controlled and directed the manner of her work. She may therefore be considered a special employee of the school so as to bar her claim. See Spasic v. Cammeby’s Mgmt. Co., 164 A.D.3d 537 (2d Dept. 2018). Because Brookville Center has made a showing of its prima facie entitlement to summary judgment and Summer has not contested its motion, Brookville Center is hereby granted summary judgment dismissing the claims against it. H.S., by her natural guardian, argues that she too is entitled to summary judgment because she cannot be held liable for her actions due to her limited mental capacity. Alternatively, H.S. argues that Summer assumed the risk of the injury she suffered and, therefore, her claim is barred. It has long been held in New York that a mentally challenged person may be held liable for negligence notwithstanding a lack of capacity to understand or control his or her actions. See Williams v. Hays, 143 N.Y. 442 (1894); Mochen v. State of New York, 43 A.D.2d 484, 485-86 (4th Dept. 1974) (Simons, J.). The rationale for this rule, as explained by Judge Simons in Mochen, is that negligent conduct is always measured by an objective reasonable man test without regard to subjective fault. Id. at 486. Therefore, there is no reason to inquire into the mental capacity of the defendant. H.S.’s mental challenges alone, therefore, do not insulate her from liability. But that does not end the inquiry, because of the unique relationship between Summer and H.S. To recover in a negligence action there must be a duty owed from the defendant to the plaintiff to use reasonable care and a breach of that duty. Turcotte v. Fell, 68 N.Y.2d 432, 437 (1986). Whether a duty is owed depends on whether “the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” Id., quoting Prosser and Keeton, Torts §53, at 357 (5th ed). Because Summer was hired specifically to assist H.S. in connection with the type of behavior that resulted in Summer’s injury, H.S owed no duty to Summer. As a result, Summer may not now seek to recover from H.S. for that behavior. Although there are no published decisions in New York that address this issue, courts across the country faced with a similar issue have consistently come to the same conclusion. In Berberian v. Lynn, 179 N.J. 290 (2004), the Supreme Court of New Jersey held that a nurse at a long-term care facility could not recover for injuries sustained when a resident of the facility suffering from Alzheimer’s disease grabbed and pushed her, causing her to fall and break her leg. The court held that the nurse’s action against the resident was not viable because the resident owed her no duty of care. Id. at 302. The court reasoned that it “would not be fair to impose a duty of care on [the resident] to his professional caregiver when the caregiver’s job duties included preventing [the resident] from injuring himself and others.” Id. at 302-03. “[T]he professional caregiver may not recover for the conduct of a patient when this conduct is, in part, the reason for the caregiver’s role.” Id. at 303. Other courts have reached similar results utilizing the same rationale. See, e.g. Gregory v. Cott, 59 Cal.4th 996 (2014)(action by home healthcare aide injured by client suffering from Alzheimer’s disease dismissed); Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000); Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450 (1996); Anicet v. Gant, 580 So.2d 273 (Fla.Dist.Ct.App. 1991); see also 57 CJ.S. Mental Health §238, Liability of Mentally Disordered Person for Own Torts — Injury to Caregiver or Attendant (“A mentally disabled patient, who does not have the capacity to control his or her conduct, does not owe his or her caregiver a duty of care, since the patient’s allegedly tortious conduct is, in part, the reason for the caregiver’s role”).1 The Supreme Court of California stated in Gregory that it “is a settled principle that those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront.” Gregory, 59 Cal.4th at 999. Summer’s role as a one-on-one aide for H.S. is analogous to the caregivers in the cases cited above. She acknowledges that she was retained to shadow and assist H.S. precisely because H.S. had a history of acting out in an aggressive manner by flailing her arms. She understood her role in part was to ensure that H.S. would not hurt herself or others and acted upon the role by becoming a human barrier when necessary. Summer had been struck multiple times in the past by H.S. and knew not only the risk, but the likelihood, that she would be struck again. And given H.S.’s condition, Summer and not H.S. was in the best position to protect against the risk that gave rise to her employment — and her compensation — in the first instance. The holding of this court is consistent with New York’s common law “firefighter rule,” that generally “precludes firefighters and police officers from recovering damages for injuries caused by negligence in the very situations that create the occasion for their services.” Zanghi v. Niagara Fronteir Transp. Com’n, 85 N.Y.2d 423, 438 (1995), quoting Santanagelo v. State of New York, 71 N.Y.2d 393 (1988). The policy behind the rule is that one who is hired to confront a dangerous situation should not be permitted to recover for an injury resulting from the situation that led to his or her retention. Such is the situation here. Summer was injured as a result of the aggressive behavior by H.S. that led to Summer’s hiring as H.S.’s aide and of which Summer was aware. Because H.S. owed no duty to Summer that was breached, H.S. is entitled to summary judgment and the action is dismissed. Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of this court. Dated: May 13, 2020
