School Not Liable For Asthma Death

When a child dies it is understandable that a parent would seek to impose liability on anyone who had any responsibility to care for the child. For school districts, just how far should the duty to care for a child go, and when does such a duty end? An interesting case from the Second Department last Tuesday – Williams v Hempstead School Dist., 2007 NY Slip Op 09582 – suggests that as soon as the child leaves school grounds any duty ends.

The child was a 5 year kindergarten student of the defendant school district. The child had asthma, which was know by the child’s teacher and school nurse. At the beginning of the school year, the child’s mother gave the nurse asthma medication, an inhaler, and an authorization and directive by the child’s pediatrician for their use.

One morning, the child’s teacher and a teacher’s aide noticed that he was coughing. Thus, the teacher’s aide took him to the school nurse, arriving at the nurse’s office at approximately 10:40 A.M. The nurse gave the child his inhaler medication and checked his breathing. The nurse noted he was breathing, alert, and in no distress. She then contacted the child’s mother. The nurse then walked the child back to his classroom (he was not coughing at this point) and asked the teacher for his homework. The mother arrived to pick up her child at about 11:40 A.M. When she did so, the child was breathing and able to walk. After indicating to the nurse that she was taking her child to his pediatrician, which the nurse had suggested, the mother got in her car with the child and left the school. While in the car the child appeared to be hot and ill, and the mother stopped twice to attend to him. Thereafter, the mother decided to drive directly home, which was closer than the pediatrician, to call for help. Upon reaching her home, the mother left the child in the car, called 911, and then moved him into the house where, upon their arrival, emergency medical personnel treated him before taking him by ambulance to the hospital. The child was pronounced dead at about 12:56 P.M. at the emergency room.

In her wrongful death action the mother alleged negligent hiring of the nurse and negligence predicated on the professional malpractice of the nurse. The defendants – the nurse and the School District – moved for summary judgment dismissing the complaint.

While the Supreme Court denied the motion, the Second Department reversed and dismissed the complaint. The Second Department stated that since child had been released to the plaintiff mother who assumed complete custody and control of him prior to the time of his death, no duty existed on the part of the defendants at the time of the child’s death. In their own word, the Court stated:

Having removed [the child] from the geographic boundaries of the District, as well as from the actual control of the defendants, and having decided in response to his physical distress to take [the child] home (where, according to hospital emergency room records, the plaintiff administered medication to him), the plaintiff cannot establish, as matter of law, that a duty existed which could give rise to any liability by the defendants.

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