        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

969
CA 14-00251
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


DONNA RITCHIE, AS PARENT AND NATURAL GUARDIAN
OF THOMAS RITCHIE, JR., AN INFANT,
PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

CHURCHVILLE-CHILI CENTRAL SCHOOL DISTRICT AND
AARON TWIGG, AS AN EMPLOYEE OF CHURCHVILLE-CHILI
CENTRAL SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS.


TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (VALERIE L. BARBIC OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

OSBORN, REED & BURKE, LLP, ROCHESTER (AIMEE LAFEVER KOCH OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered May 10, 2013. The order granted defendants’
motion for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries sustained by her infant son when he was struck by a motor
vehicle. Shortly before the accident, plaintiff’s son, a student in
defendant Churchville-Chili Central School District was dropped off
across the street from a lacrosse team fundraiser, in which he and his
mother planned on participating. Plaintiff directed her son to “stay
there” with the other team members in order to direct vehicles into
the parking area for the fundraiser while she went across the street
to assist with serving food. A teammate told plaintiff’s son to
confirm his attendance by going to check in with a coach. Plaintiff’s
son crossed the street to do so and was struck by a passing vehicle.

     Defendants moved for summary judgment dismissing the complaint
contending, inter alia, that they owed no duty of care to plaintiff’s
son because he was not in their custody or control when the accident
occurred. We conclude that Supreme Court properly granted the motion.

     As a preliminary matter, we reject plaintiff’s contention that
defendants’ motion for summary judgment was premature (see Resetarits
Constr. Corp. v Elizabeth Pierce Olmstead, M.D. Center for the
Visually Impaired [appeal No. 2], 118 AD3d 1454, 1455-1456). With
                                 -2-                           969
                                                         CA 14-00251

respect to the merits of the case, it is well settled that “[t]he duty
of a school district to its students is strictly limited by time and
space and exists only so long as a student is in its care and custody”
(Harker v Rochester City Sch. Dist., 241 AD2d 937, 938 [internal
quotation marks omitted], lv denied 90 NY2d 811, rearg denied 91 NY2d
957; see Dalton v Memminger, 67 AD3d 1350, 1350-1351; Norton v
Canandaigua City Sch. Dist., 208 AD2d 282, 285, lv denied 85 NY2d 812,
rearg denied 86 NY2d 839; see also Pratt v Robinson, 39 NY2d 554,
560). We reject plaintiff’s contention that defendants owed
plaintiff’s son a duty of care under the circumstances here. When
plaintiff dropped off her son and told him to “stay there,” she made a
parental decision to keep her son across the street because she was
concerned about him “crossing over” given that there was “lots of
traffic” in the intersection where the accident occurred. Thus,
plaintiff had not relinquished control of her son, and defendants had
not yet gained the physical custody or control of him that is a
prerequisite to imposing a legal duty on them (see e.g. Norton, 208
AD2d at 287; see also Ramo v Serrano, 301 AD2d 640, 641; Silver v
Cooper, 199 AD2d 255, 256, lv denied 83 NY2d 753). The fact that
plaintiff’s son disobeyed plaintiff’s directive and crossed the street
does not change that legal result.

     We reject plaintiff’s further contention that defendants owed
plaintiff’s son a duty because the defendants placed plaintiff’s son
in a “for[e]seeably dangerous setting that the [defendants] had a hand
in creating.” Because the child was never in the physical custody or
control of the defendants, however, the defendants were “never in a
position to . . . release [plaintiff’s son] into a hazardous setting”
(Williams v Weatherstone, 23 NY3d 384, 401).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
