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Doktor v. Greenberg

Decided: November 23, 1959.

ROBERT DOKTOR, AN INFANT BY HIS GUARDIAN AD LITEM, BENJAMIN DOKTOR AND BENJAMIN DOKTOR, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
BARBARA ROTHBERG GREENBERG, DEFENDANT-RESPONDENT



Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.

Freund

Plaintiff Robert Doktor, who was 12 years old and a seventh-grade student in the Engle Street Junior High School, Englewood, on February 15, 1957, brought this negligence action against a teacher in the school to recover for personal injuries, culminating in the loss of a leg, sustained when another student assaulted him. His father, Benjamin Doktor, sues as guardian ad litem and per quod. The defendant, Barbara Rothberg Greenberg (hereinafter "Miss Rothberg"), was in her first year of regular teaching, having commenced her duties in September 1956 after a short period of practice teaching. The complaint charges negligent supervision by her of the classroom which Robert was attending. The appeal is from a dismissal of the claim by the trial judge of the Law Division at the conclusion of plaintiffs' proofs.

During a lunch-hour change of classes, plaintiff, with two friends, was walking in a corridor in the direction of room 212 for an English class with Miss Rothberg. He saw defendant standing outside the room, at the door. She was looking in his direction. When Robert was about 15 feet from the doorway, John Joyce, another student whom Robert did not know, walked out of defendant's classroom and, in passing Robert in the corridor, "for no reason at all" punched him. Robert testified, "I didn't instigate this at all." The blow came without warning and took him by surprise. In his first year at the school, Robert did not want to give the taller Joyce boy "the impression that I don't like to fight" or "the impression that anyone could just pick on me," so he retaliated by tapping Joyce's shoulder with the back of his hand.

Plaintiff testified he thought his "sideswiping" of Joyce's shoulder "was the end of it." Robert consequently continued on his way down the hall and into the classroom. He was just on the threshold when, without warning, Joyce pushed him from behind, causing plaintiff to fall against a nearby desk and injure his right foot on its metal leg. At this

point Miss Rothberg was in the front of the room, either at the blackboard near the doorway or at her desk.

Robert's leg worsened and eventually was amputated three inches below the knee. He now wears an artificial limb.

Apart from what occurred on this Friday afternoon, there was no proof that Joyce was previously physically aggressive or that he bullied other pupils. Miss Rothberg's answers to interrogatories, introduced into evidence by plaintiffs, admitted that Joyce was "a discipline problem," and that, while he had never been sent to the principal, "Because of his unruly conduct on several occasions, he was ordered to the isolation class." The answers do not, however, indicate that Miss Rothberg had any previous actual or constructive notice of Joyce's assaultive propensities, if such existed.

Defendant had been instructed by the principal that her duties included the maintaining of order in the corridor outside the classroom as well as inside the classroom. During the changing of classes, it was a matter for her discretion whether she should be in the corridor or in the classroom. When on corridor duty, the teachers customarily stand in a position where they can see inside the classroom and down the corridor. By the time Robert had reached the doorway, Miss Rothberg's room was a little less than half filled with students of the class about to begin.

The Law Division judge dismissed the complaint for three reasons: (1) defendant's duty to supervise is a public duty and not a duty owed to the plaintiff, and therefore there was no legal obligation for her to intervene and protect Robert from Joyce; (2) the first encounter in the hallway was not of a nature as to attract the attention of the teacher, and she could not as a matter of law be charged with negligence; and (3) plaintiff's injuries were not proximately caused by the defendant's negligence but were attributable to Joyce's intervening act.

On appeal, the defendant does not attempt to support the first reason given by the trial judge as requiring a dismissal. It is conceded that a public school teacher does

owe her pupils the duty of supervision, and will be liable for injuries caused by failure to discharge that duty with reasonable care. So much has already been indicated by this court in Hare v. Pennell , 37 N.J. Super. 558, 568 (App. Div. 1955); other authorities are not to the contrary, and we so hold. 78 C.J.S. Schools and School Districts § 238c, p. 1197; 47 Am. Jur., Schools (1959 Cum. Supp.), § 60.1, p. 30; Annotations 160 A.L.R. 7, 147, 155 (1946); 32 A.L.R. 2 d 1163, 1182-84 ...


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