UHR v. EAST GREENBUSH CENTRAL SCHOOL DISTRICT
Court of Appeals of New York, 1999.
94 N.Y.2d 32, 720 N.E.2d 886, 698 N.Y.S.2d 609.
ROSENBLATT, J.
Education Law § 905(1) requires school authorities in the State of New York to
examine students between 8 and 16 years of age for scoliosis at least once in each school
year. The principal issue on this appeal is whether the statute authorizes a private right of
action.
During the 1992-1993 school year, the infant plaintiff was a seventh grade student
at the Goff Middle School, operated by defendant East Greenbush Central School
District. In October 1992, as part of a school program, a nurse screened her for scoliosis.
The results were negative. She was examined during the following school year (19931994) by a school nurse who checked her height, weight and vision but allegedly did not
screen her for scoliosis.
In March 1995, when the infant plaintiff was a ninth grader during the 1994-1995
school year at Columbia High School (also operated by the East Greenbush Central
School District), a school nurse screened her for scoliosis and the examination proved
positive. Her parents, who are also plaintiffs in this action, then had her examined by an
orthopedic doctor who concluded that her scoliosis had progressed to the point that
surgery was required instead of the braces that often can be utilized when the condition is
diagnosed earlier. The infant plaintiff underwent surgery in July 1995.
Plaintiffs have alleged two causes of action against the East Greenbush Central
School District and its Board of Education (collectively "the District"). One is based on a
claimed violation of Education Law § 905(1), one on common-law negligence. Plaintiffs
assert, in essence, that the District was negligent in failing to examine the infant plaintiff
for scoliosis during the 1993-1994 school year, as a result of which her ailment was
allowed to progress undetected, to her detriment. Supreme Court granted the District's
motion for summary judgment, holding that Education Law § 905(1) does not create a
private right of action, and that plaintiffs had otherwise failed to state a claim for
common-law negligence. The Appellate Division affirmed. We granted leave to appeal to
this Court and now affirm.
The Relevant Statutes
We first address plaintiffs' claim that Education Law § 905(1) may be enforced by
a private right of action. Three provisions of the Education Law are relevant to our
inquiry. Education Law § 905(1) states that "[m]edical inspectors or principals and
teachers in charge of schools in this state shall . . . examine all . . . pupils between eight
and sixteen years of age for scoliosis, at least once in each school year." Education Law
§ 905(2) provides that "[n]othwithstanding any other provisions of any general, special or
local law, the school authorities charged with the duty of making such tests or
examinations of pupils for the presence of scoliosis pursuant to this section shall not
suffer any liability to any person as a result of making such test or examination, which
liability would not have existed by any provision of law, statutory or otherwise, in the
absence of this section." Finally, Education Law s 911 charges the Commissioner of
Education with the duty of enforcing the provisions of sections 901 through 910 of the
Education Law and authorizes the Commissioner to "adopt rules and regulations" for
such purpose.
The Test for the Availability of a Private Right of Action
As plaintiffs point out, the District's obligation to examine for scoliosis is plain
enough. A statutory command, however, does not necessarily carry with it a right of
private enforcement by means of tort litigation (see, e.g., Mark G. v. Sabol, 93 N.Y.2d
710).
The availability of a private right of action for the violation of a statutory duty--as
opposed to one grounded in common-law negligence--is not a new concept. [ ] When a
statute itself expressly authorizes a private right of action (e.g., Social Services Law §
420[2]; General Obligations Law § 11-100[1]; § 11-101[1] ), there is no need for further
analysis. When a statute is silent, as it is here, courts have had to determine whether a
private right of action may be fairly implied. In [ ], this Court articulated the standards
that were synthesized into a three-part test in Sheehy v. Big Flats Community Day, 73
N.Y.2d 629 [1989]. In making the determination, we ask:
“(1) whether the plaintiff is one of the class for whose particular benefit the
statute was enacted;
“(2) whether recognition of a private right of action would promote the legislative
purpose; and
“(3) whether creation of such a right would be consistent with the legislative
scheme” [ ]
There is no doubt that the infant plaintiff is a member of the class for whose particular
benefit Education Law § 905(1) was enacted. The first prong is satisfied.
The second prong is itself a two-part inquiry. We must first discern what the
Legislature was seeking to accomplish when it enacted the statute, and then determine
whether a private right of action would promote that objective [ ].
Here, the purpose of the statute is obvious. Scoliosis is a curvature of the spine
which, if left undetected in children, can be crippling [ ]. Upon early detection, scoliosis
can be treated successfully, often without the need for surgery. In 1978 the Legislature
amended Education Law § 905(1) to add scoliosis screening to the then existing
obligations to test children's vision and hearing [ ].
It is apparent that the Legislature was seeking to benefit the population as a whole
by creating broad-based screening examinations for scoliosis, recognizing that early
detection could serve the entire public in both its health and its purse. A main proponent
of the legislation stated that: "The Bill will help reduce the cost of medical care to the
general public as well as to the State in the case of indigent consumers. It will reduce
hospital utilization as those cases which are detected in their early stage can be medically
managed without hospitalization" [ ].
Early detection of the condition serves the dual legislative purpose of promoting
public health and avoiding costly hospitalization.
In arguing that a private right of action would promote these objectives, plaintiffs
assert that the risk of liability for failure to screen will encourage compliance with
Education Law § 905(1), and thereby further the statute's purpose of providing broadbased screenings that benefit the public. In response, the District argues that the risk of
liability will prompt school districts to seek waivers of the requirement to screen and thus
defeat the statute's purpose.
...
In all, we conclude that a private right of action would promote the legislative
purpose and, therefore, the second prong is satisfied.
We turn next to the third Sheehy prong--whether a private right of action is
consistent with the legislative scheme. It is not always easy to distinguish this
"consistency" prong from the second Sheehy prong, which centers on "promotion" of the
legislative goal. The two prongs may overlap and to that extent may resist pigeon-holing.
A private right of action may at times further a legislative goal and coalesce smoothly
with the existing statutory scheme [ ]. Conversely, a statute's goal may not necessarily be
enhanced by adding a private enforcement mechanism. In assessing the "consistency"
prong, public and private avenues of enforcement do not always harmonize with one
another. A private enforcement mechanism may be consistent with one statutory scheme,
but in another the prospect may disserve the goal of consistency--like having two drivers
at the wheel. Both may ultimately, at least in theory, promote statutory compliance, but
they are born of different motivations and may produce a different allocation of benefits
owing to differences in approach [ ].
Plaintiffs argue that a private right of action is not only consistent with Education
Law § 905(1) but also necessary for its operation. They assert that the statute offers no
other practical means of enforcement and that a private right of action is imperative, in
order to give it life. We disagree and conclude that a private right of action would not be
consistent with the statutory scheme. To begin with, the statute carries its own potent
official enforcement mechanism. The Legislature has expressly charged the
Commissioner of Education with the duty to implement Education Law § 905(1) and has
equipped the Commissioner with authority to adopt rules and regulations for such
purpose (see, Education Law § 905[1]; § 911). Moreover, the Legislature has vested the
Commissioner with power to withhold public funding from noncompliant school
districts. Thus, the Legislature clearly contemplated administrative enforcement of this
statute.
The question then becomes whether, in addition to administrative enforcement, an
implied private right of action would be consistent with the legislative scheme. It would
not. The evolution of Education Law § 905(2) is compelling evidence of the Legislature's
intent to immunize the school districts from any liability that might arise out of the
scoliosis screening program. By the language of Education Law § 905(2) the Legislature
deemed that the school district "shall not suffer any liability to any person as a result of
making such test or examination" (emphasis added). Plaintiffs contend that by
implication, the District is denied immunity for failing to perform the examination. In
effect, plaintiffs would interpret the statute as conferring immunity for misfeasance but
not nonfeasance. On the other hand, the District contends that it would be incongruous
for the Legislature to accord immunity for one circumstance but not the other.
[The court sided accepted the defendant’s contention. It found “persuasive
evidence” of legislative desire to immunize school districts in its overturning of related
appellate court ruling but its failure to overrule two others directly on this point. The
court also noted that statements antedating the legislation at issue in this case had stated
that the program “would have minimal financial impact on school districts.”]
In sum, we conclude that a private right of action to enforce Education Law §
905(1) is inconsistent with the statute's legislative scheme and therefore cannot be fairly
implied [ ].
Common-Law Negligence
Plaintiffs contend that the lower courts erred in holding that they failed to state a
claim for common-law negligence. Essentially, plaintiffs argue that the District assumed
a duty to the infant plaintiff and her parents by creating a special relationship with them
in connection with the Education Law § 905(1) program and that it breached its duty by
failing to perform the examination during the 1993-1994 school year. We agree with the
courts below that plaintiffs have failed as a matter of law to state a claim for common-law
negligence (see, Cuffy v. City of New York, 69 N.Y.2d 255, 261).
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK and
WESLEY concur.
Notes and Questions
1. How does this impact of statutes on tort law differ from the one we considered
at p. ___, supra? The issue is discussed in Marquay v. Eno, 662 A.2d 272 (N.H. 1995):
The doctrine of negligence per se . . . provides that where a cause of action
does exist at common law, the standard of conduct to which a defendant will be
held may be defined as that required by statute, rather than as the usual reasonable
person standard. [ ] The doctrine of negligence per se, however, plays no role in
the creation of common law causes of action. Thus, in many cases, the common
law may fail to recognize liability for failure to perform affirmative duties that are
imposed by statute. [ ]
Recognizing this distinction, we first inquire whether the plaintiff could
maintain an action at common law. [ ] Put another way, did the defendant owe a
common law duty of care to the plaintiff? If no common law duty exists, the
plaintiff cannot maintain a negligence action, even though the defendant has
violated a statutory duty [that does not otherwise create a common law tort]. If a
common law duty does exist and there is an applicable statute, the defendant, in a
negligence action, will be held to the statutory standard of conduct if the plaintiff
is in a class the legislature intended to protect, and the harm is of a type the
legislature intended to prevent. [ ]
What kinds of decisions must courts make in the two contexts?
2. The opinion in Uhr analyzes whether a duty may arise from a particular statute
when neither a special relationship between the parties nor an affirmative obligation to
act would create a duty under the common law. The Restatement (Second) § 874A, “Tort
Liability for Violation of Legislative Provision,” addresses the same issue:
When a legislative provision protects a class of persons by proscribing or
requiring certain conduct but does not provide a civil remedy for the violation, the
court may, if it determines that the remedy is appropriate in furtherance of the
purpose of the legislation and needed to assure the effectiveness of the provision,
accord to an injured member of the class a right of action, using a suitable existing
tort action or a new cause of action analogous to an existing tort action.
Are the approaches of §874A and Uhr consistent?
Although the Second Restatement insists that the judiciary must determine
whether or not a right of action should be imposed, some courts instead ask if a state
legislature, in creating a new statutory duty, either explicitly or implicitly “intended” to
create civil liability. See Marquay v. Eno, supra (refusing, for lack of discernible
legislative intent, to grant plaintiffs a private right of action against school teachers who,
in violation of the state child abuse reporting statute, had failed to inform the state about
their colleagues’ ongoing conduct). How does discussing the intent of the legislature
differ from the approaches in Uhr and §874A?
3. Duty to rescue. We have seen that common law will not generally require
rescue. What should happen in a state that has adopted a criminal requirement to rescue?
In the early 1970s, Vermont adopted such a statute. The history of this legislation is
traced in Franklin, Vermont Requires Rescue: A Comment, 25 Stan.L.Rev. 51 (1972).
The statute, Vt.Stat.Ann., tit. 12, § 519 (1967), provides:
(a) A person who knows that another is exposed to grave physical harm shall, to
the extent that the same can be rendered without danger or peril to himself or
without interference with important duties owed to others, give reasonable
assistance to the exposed person unless that assistance or care is being provided
by others.
(b) A person who provides reasonable assistance in compliance with subsection
(a) of this section shall not be liable in civil damages unless his acts constitute
gross negligence or unless he will receive or expects to receive remuneration.
Nothing contained in this subsection shall alter existing law with respect to tort
liability of a practitioner of the healing arts for acts committed in the ordinary
course of his practice.
(c) A person who wilfully violates subsection (a) of this section shall be fined not
more than $100.00.
Only a handful of states have followed Vermont’s lead. See Bagby, Note,
Justifications for State Bystander Intervention Statutes: Why Crime Witnesses Should Be
Required to Call for Help, 33 Ind.L.Rev. 571, 574-75 (2000). Would providing statutory
incentives be a more effective way to encourage rescue than creating criminal duties or
duties in tort? In earlier years, some states reacted to the problem of rescue by giving
awards to persons hurt while attempting rescues. The object was to indemnify for loss
rather than to “reward.” See, e.g., Calif.Govt.Code § 13970-74.
If Vermont had adopted only sections (a) and (c), should a court create a civil
duty to rescue? See the extended discussion in Franklin and Ploeger, “Of Rescue and
Report: Should Tort Law Impose a Duty to Help Endangered Persons or Abused
Children,” 40 Santa Clara L.Rev. ____ (2000). What complications are introduced by the
existence of section (b)?
4. More recently, legislatures have penalized those who fail to report crimes that
they witness. The most recent stimulus was the 1997 murder of seven-year-old Sherrice
Iverson in a Las Vegas casino bathroom while David Cash, the 17-year-old murderer’s
friend, did not intervene. He either See Ziegler, Comment, Nonfeasance and the Duty to
Assist: The American Seinfeld Syndrome, 104 Dick.L.Rev. 525, 527 (2000). Should
courts create civil actions based on these statutes? Should it matter whether Cash stood
outside the bathroom the entire time; entered the bathroom and saw the event unfolding
before he left; or saw the start of the event, verbally urged the killer to stop--and then left
the bathroom?
5. Reporting child abuse. Every state has now adopted some form of law
requiring that those who have knowledge of, or reason to suspect child abuse, report it.
Some statutes explicitly impose civil liability. There may also be compelling policy
reasons for courts to recognize private causes of action even when state laws do not
mandate civil liability. Consider the following possible distinctions between duties to
rescue and duties to report: a) “the need for child abuse reporting seems to be far more
pressing than the need for easy rescue” since child abuse “is done in secret and is much
harder to ferret out”; b) “victims of child abuse are unable to articulate their harm or even
to contact police or other officials”; c) “a duty to report child abuse—or just keeping the
child away from an abusive person—may infringe less on personal freedom than a duty
of easy rescue”; d) “the harm occurs slowly and over a period of time, allowing the legal
system a better chance to measure the harm done by the delay.” See Franklin and
Ploeger, supra. Do these considerations justify different tort treatment for the two areas?
For differing approaches to child abuse statutes, see Perry v. Perry, 973 S.W.2d
301 (Tex. 1998) (refusing to imply an action from the state statute and noting that the
plaintiff had not pursued an earlier common-law claim) and J.S. v. R.T.H., 714 A.2d 924
(N.J. 1998) (denying summary judgment to the wife of a man who sexually abused his
neighbors’ two daughters when they visited daily to ride his horses; if the wife suspected
or should have suspected her husband, she had a duty “to take reasonable steps to prevent
or warn of the harm”). In the latter case, the court relied in part on the existence of the
state’s criminal reporting statute and §874A, note 2, supra. Is it easier (or harder) to
impose this kind of duty on a spouse than on a stranger who violates a reporting statute?
6. Federal Statutes. Since there is no federal common law, the federal courts
cannot create civil liability independent of Congressional enactments. In the absence of
express statutory provisions, they must decide whether to imply private rights of action.
Cort v. Ash, 422 U.S. 66 (1975) laid out four basic criteria for determining whether a
civil action would be implied. For comprehensive discussion of the subject, see Stewart
and Sunstein, Public Programs and Private Rights, 95 Harv.L.Rev. 1195 (1982). See also
Stabile, “The Role of Congressional Intent in Determining the Existence of Implied
Private Rights of Action,” 71 Notre Dame L. Rev. 861 (1996), suggesting that recently
federal courts have focused less on the Cort factors and more exclusively on
Congressional intent.
Of course, Congress may sometimes explicitly create a federal tort action. The
recent Emergency Medical Treatment and Active Labor Act (EMTALA) requires that
hospitals with emergency facilities accept patients in an “emergency medical condition”
and treat them until they are stabilized and can be moved safely. Congress provided a
statutory damage action for anyone injured by violations of the Act. See Roberts v. Galen
of Virginia, Inc., 524 U.S. 249 (1999), in which a guardian sued for damages alleging
that the transfer of his ward from defendant hospital to another while the ward was in
unstable condition harmed the ward and violated EMTALA. The Supreme Court rejected
the hospital’s argument that the statute required a showing that the hospital had acted
from an improper motive. There was no reason to read such a requirement into the
statute.
7. Statutory Limitations on Liability. In addition to being used to create civil
liability, statutes can restrict or abolish common law duties. See the discussion of
preemption in Chapter VI. Here we consider statutory efforts to encourage conduct by
using immunity as a carrot. In 1959, California provided that no physician licensed in the
state “who in good faith renders emergency care at the scene of the emergency, shall be
liable for any civil damages as a result of acts or omissions by such person in rendering
the emergency care.” Bus. & Prof.Code § 2144. If fear that victims aided in an
emergency will sue for malpractice is a major factor in the alleged reluctance of
physicians to volunteer, how effective are statutes like California’s? How about a statute
that protects physicians against liability for negligence but not for gross negligence? How
about a total bar on suits against those who try to help at the scenes of accidents? Should
these statutes be limited to physicians or should all volunteers be similarly protected?
What changes in behavior would you expect from such a statute? See generally Mason,
Comment, Good Samaritan Laws--Legal Disarray: An Update, 38 Mercer L. Rev. 1439
(1987) (analyzing Good Samaritan statutes and case law). The Vermont duty to rescue,
discussed earlier, evolved from a lobbying effort to exempt physicians who stopped and
assisted at emergency scenes from liability for negligence.
Congress has sometimes developed its own statutory incentives to assist. Consider
the federal Volunteer Protection Act of 1997, Pub.L. 105-19, 42 U.S.C.A. §§ 14501-05,
which creates personal immunity for volunteers of nonprofit organizations and
governmental entities as long as the harm they cause is not based on “willful or criminal
misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference
to the rights or safety of the individual harmed by the volunteer.” The Act does not apply
to injuries arising out of the use of a motor vehicle, nor does it create immunity for the
entity for which the volunteer is working. Its preemptive effect on state tort liability can
be negated by state legislation expressly indicating that the Act shall not apply.
Another Congressional statute, with several state analogues, protects those who in
good faith donate food to nonprofit groups that later distribute the food to needy
individuals. Donors are not protected for acts or omissions “constituting gross negligence
or intentional misconduct.” See Pub.L. 104-210, 42 U.S.C.A. §§ 12671-73. Is this too
protective? Not protective enough?
In general, do some situations lend themselves better to “carrots” and others
to “sticks”?