Monday, September 27, 2010
A occupational therapist who was injured by a student with autism could not pursue negligence claims against the district or the student's parents. The court held that neither had a duty to warn the therapist of the student's aggressive tendencies. Johnson v. Cantie, ____A.D. 3d____(N.Y. App. Div. 3rd Dep't.06/11/10). The court reasoned in part:
With respect to the claim for failure to warn of the aggressive tendencies of the Canties' daughter, it is well established that there is no duty to warn an individual about a condition of which he or she is actually aware or that may be readily observed by a reasonable use of his or her senses (see Faery v City of Lockport, 70 AD3d 1375; Baggott v Corcoran, 48 AD3d 1182; Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102, lv denied 8 NY3d 802). The Canties and the District met their burden of establishing their entitlement to judgment as a matter of law by submitting the deposition testimony of plaintiff in which she admitted that, prior to the incident, she was aware that the Canties' daughter had a tendency to use physical contact to express herself (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Indeed, plaintiff admitted that the behavior of the Canties' daughter on the date of the incident was the type of behavior that plaintiff expected from her and had observed on previous occasions. The bare assertion by plaintiff that she would have liked "more information" about the Canties' daughter from the Canties or the District was insufficient to defeat the motions for summary judgment (see generally id.).
Mitchell H. Rubinstein