Court Upholds $500G Jury Award to Injured Teacher

A special education Teacher who was injured when she protected one student against attack from another will receive more than $500,000 from the Department of Education after an appellate court denied an appeal of a lower-court ruling in her favor.

Zelinda Dinardo was injured in March 1999 by one of her 10-year-old students, who had grown progressively more disruptive over the course of the school year, after he tried to strike another student. She was awarded $512,465 by a Bronx Supreme Court jury in April 2008.

Transfer Request Rebuffed

Her suit stated that she had alerted the school administration about the troublesome student and had tried to have him transferred to another program, a complicated procedure for a special education student, but that nothing had happened, despite promises to the contrary. The DOE argued that no official promises were made and that the burden of responsibility fell on Ms. Dinardo to push the child through the system.

The application for transfer requires an administrative process on DOE's part called a Type 3 referral. The 3-2 ruling by the appellate court noted that Ms. Dinardo had worked on two of these referrals before and that she asked DOE to initiate another one concerning the student who would later attack her.

DOE's claim was that although there may have been an informal pledge to put the Type 3 referral in motion, Ms. Dinardo was never explicitly promised that such a move would happen and that she should have followed up on it continuously, especially since she knew how slow the process—which sometimes took 60 days—could be.

But the decision noted that "although no express promise was made to plaintiff by any agents of the DOE, there is no requirement that the promise to protect be explicit," and that Ms. Dinardo had been told by her supervisor to "hang in there because something was being done to have [the student] placed or removed."

Reasonable Conclusion by Jury

A dissenting opinion by one judge said that this alone could not have lulled Ms. Dinardo into "a false sense of security" on the matter, given her previous experience with Type 3 referrals. But the majority opinion stated that the jury was rational to believe that Ms. Dinardo "relied on the [DOE's] affirmative undertaking, given the assurances she received."

Ms. Dinardo had told her Principal and Assistant Principal, as well as her direct supervisor, that "the situation was getting more impossible, that she wanted to quit, that it was getting unsafe, and that she was concerned about safety in the classroom." She was told "to hang in there" and that "things were being worked on, things were happening," and later her Principal wrote a letter to the District supervisor of special education "urgently requesting an alternative site" for the student.

The court rejected DOE's argument that it could not be held liable because it was unaware of how dangerous the student was. "The [DOE's] agents were aware of the student's aggressive tendencies and that [Ms. Dinardo] indeed feared for her safety in the classroom," the decision said.

The court majority also rejected DOE's argument that the onus to move the child within the system rested with Ms. Dinardo. "[DOE's argument] is premised on [DOE's] alleged negligence in the placement and transfer of a student," the decision stated. "The responsibility for [this] lies within the professional judgment and discretion of those charged with the administration of the public schools."