author: Read, J.

text:
    [14 NE3d 970, 991 NYS2d 386]
    In the Matter of Allen B., Respondent, v Christine A. Sproat, Justice of the Supreme Court, Dutchess County, et al., Appellants, et al., Respondent. In the Matter of Robert T., Respondent, v Christine A. Sproat, Justice of the Supreme Court, Dutchess County, et al., Appellants, et al., Respondent.
    Argued March 24, 2014;
    decided May 13, 2014

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City (Andrew W. Amend, Barbara D. Underwood and Steven C. Wu of counsel), for appellants in the first and second above-entitled proceedings.
    Effective-evaluation provisions fall well within CPL 330.20’s broad grant of authority to courts charged with supervising insanity acquittees. (Matter of Nicholson v State Commn. on Jud. Conduct, 50 NY2d 597; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of Francis S., 206 AD2d 4, 87 NY2d 554; Matter of George L., 85 NY2d 295; Matter of Jill ZZ., 83 NY2d 133; Matter of Oswald N., 87 NY2d 98; People v Stone, 73 NY2d 296; Matter of K.L., 1 NY3d 362; C.R. v Adams, 649 F2d 625.)

      Lesley M. DeLia, Mental Hygiene Legal Service, Mineola (Lisa Volpe, Scott Wells and Dennis B. Feld of counsel), for respondents in the first and second above-entitled proceedings.
    Under the existing statutory scheme of CPL 330.20, and in accord with constitutional due process, an order of conditions may not properly contain an ex parte enforcement provision authorizing the temporary confinement of a conditionally released acquittee. (Matter of Oswald N., 87 NY2d 98; Matter of Albert F., 5 AD3d 5; Matter of Oliver C. v Weissman, 203 AD2d 458; People v Stone, 73 NY2d 296; Arons v Jutkowitz, 9 NY3d 393; Morales v County of Nassau, 94 NY2d 218; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Matter of George L., 85 NY2d 295; Matter of Francis S., 206 AD2d 4.)

      Kathleen M. Rice, District Attorney, Mineóla (Jacqueline Rosenblum, Tammy J. Smiley and Rebecca Abensur of counsel), for District Attorneys Association of the State of New York, amicus curiae in the first and second above-entitled proceedings.
    The Appellate Division, Second Department’s order is inconsistent with the purpose of the statute to ensure public safety and therefore should be reversed. (Matter of Francis S., 87 NY2d 554; Matter of Oswald N., 87 NY2d 98; Matter of Norman D., 3 NY3d 150.)
   OPINION OF THE COURT

Read, J.

The issue common to these appeals is whether a supervising court may include in an order of conditions a provision allowing the New York State Office of Mental Health (OMH) to seek judicial approval of a mandatory psychiatric evaluation in a secure facility when a defendant found not responsible by reason of mental disease or defect fails to comply with the conditions of his release and refuses to undergo voluntary examination. For the reasons that follow, we hold that Criminal Procedure Law § 330.20 does not prohibit inclusion of such a requirement (which OMH calls an “effective-evaluation provision”) in an order of conditions, and therefore reverse. To put our holding in context, we begin with an overview of the post-verdict procedures established by section 330.20.

I.

The Examination Order

Following an insanity verdict or plea, the trial judge must immediately order a psychiatric examination of the defendant, to be followed by an initial hearing to determine the defendant’s current mental state (see CPL 330.20 [2]-[6]). The examination usually takes place in a secure facility for a period not exceeding 30 days, subject to extension upon application by the Commissioner of OMH (the Commissioner) to the court (see id. § 330.20 [4]); at least two qualified psychiatric examiners must examine the defendant and prepare reports for submission, in the first instance, to the Commissioner, and then to the judge (see id. § 330.20 [2], [5], [15]).

The Initial Hearing, Commitment Orders and Orders of Condition

Within 10 days after receipt of the examination reports, the trial judge must conduct an initial hearing to classify the defendant as track one, two or three (see id. § 330.20 [6], [7]; see also People v Stone, 73 NY2d 296, 300 [1989]). Track-one defendants are those found by the trial judge to suffer from a dangerous mental disorder; i.e., a mental illness that makes them “a physical danger to [themselves] or others” (see id. § 330.20 [1] [c]; [6]). Track-two defendants are mentally ill, but not dangerous (see id. § 330.20 [1] [d]; [6], [7]), while track-three defendants are neither dangerous nor mentally ill (see id. § 330.20 [7]). “Track status, as determined by the initial commitment order, governs the acquittee’s level of supervision in future proceedings and may be overturned only on appeal from that order, not by means of a rehearing and review” (Matter of Norman D., 3 NY3d 150, 152 [2004]).

The trial judge must issue a commitment order consigning track-one defendants to the custody of the Commissioner for confinement in a secure facility for care and treatment for six months (see id. § 330.20 [1] [f]; [6]). Track-two defendants are ordered into the Commissioner’s custody for detention in a non-secure (civil) facility, subject to an order of conditions (see id. § 330.20 [1] [o]; [7]). The order committing a track-two defendant is deemed made pursuant to the Mental Hygiene Law rather than section 330.20; concomitantly, subsequent proceedings regarding retention, conditional release or discharge of a track-two defendant are governed by articles 9 (mentally ill) or 15 (mentally retarded) of the Mental Hygiene Law (see id. § 330.20 [7]). Track-three defendants are discharged either unconditionally or, in the judge’s discretion, with an order of conditions (see id.; see also id. § 330.20 [1] [n] [a discharge order is defined as “an order terminating an order of conditions or unconditionally discharging a defendant from supervision under the provisions of (section 330.20)]”).

An order of conditions is “an order directing a defendant to comply with [the] prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is in custody of the commissioner, not to leave the facility without authorization” (see id. § 330.20 [1] [o] [emphasis added]; see also id. § 330.20 [12], discussed infra). Such orders are valid for five years and may be extended for good cause shown (see id. § 330.20 [1] [o]; see also Matter of Oswald N., 87 NY2d 98, 105 [1995]).

First and Subsequent Retention Hearings: Retention Orders, Transfer Orders and Release Orders

At least 30 days before a track-one defendant’s initial six-month commitment period lapses, the Commissioner must apply to the trial judge, or a superior court in the county where the defendant is securely housed, for a first retention order or a release order (see id. § 330.20 [8]). The Commissioner must give written notice of this application to the district attorney, the defendant, his counsel and the Mental Hygiene Legal Service. Upon receipt of the application, the judge on his own motion may, or upon timely demand by one of those individuals or entities receiving notice must, conduct a hearing.

If the judge finds that the track-one defendant still suffers from a dangerous mental disorder, he must issue a first retention order, authorizing secure confinement for another year, and thereafter (before expiration of the first, second and any subsequent retention orders, and assuming the defendant’s dangerous mental disorder persists) for succeeding periods of up to two years (see id. § 330.20 [1] [g]-[i]; [8], [9]). Alternatively, if the judge finds during a first or subsequent retention proceeding that a track-one defendant is mentally ill but no longer suffers from a dangerous mental disorder, he must issue a retention order along with a transfer order and an order of conditions (see id. § 330.20 [8], [9], [11]). In the event that the judge finds that the defendant no longer suffers from a dangerous mental disorder and is not mentally ill, he must issue a release order and an order of conditions (see id. § 330.20 [8], [9], [12]).

A transfer order directs the Commissioner to move the defendant from secure to nonsecure confinement (see id. § 330.20 [1] [l]). A release order directs the Commissioner to terminate the defendant’s in-patient status without ending his responsibility for the defendant (see id. § 330.20 [1] [m]). When a defendant is in the Commissioner’s custody before expiration of the period prescribed in a first, second or subsequent retention order, the same procedures govern application for issuance of any subsequent retention order (see id. § 330.20 [9]).

Transfer Orders Generally

At any time while the track-one defendant is in the Commissioner’s custody pursuant to a retention or recommitment order, the Commissioner may apply to the court that issued the order then in effect, or to a superior court in the county where the defendant is securely housed, for a transfer order if, in his view, the defendant no longer suffers from a dangerous mental disorder, or, “consistent with the public safety and welfare of the community and the defendant, the [defendant’s] clinical condition . . . warrants” the lesser level of confinement (see id. § 330.20 [11]). The Commissioner must give 10 days’ written notice of this application to the district attorney, the defendant, his counsel and the Mental Hygiene Legal Service.

Upon receipt of the application, the judge on his own motion may, or upon demand by the district attorney must, conduct a hearing on the application. He must grant the application and issue the transfer order, along with an order of conditions, if he finds that the defendant does not suffer from a dangerous mental disorder, or that the defendant’s transfer from secure to nonsecure detention is consistent with public safety and welfare of the community and the defendant, and is warranted by the defendant’s clinical condition.

Release Orders Generally

At any time while the track-one defendant is in his custody pursuant to a retention or recommitment order, the Commissioner may apply to the court that issued the order then in effect, or to a superior court in the county where the defendant is housed, for a release order if, in the Commissioner’s view, the defendant no longer suffers from a dangerous mental disorder and is not mentally ill (see id. § 330.20 [12]). The Commissioner must give 10 days’ written notice of this application to the district attorney, the defendant, his counsel and the Mental Hygiene Legal Service.

Upon receipt of the application, the judge must promptly hold a hearing to determine the defendant’s present mental condition. If the judge finds that the defendant suffers from a dangerous mental disorder, he must deny the application for a release order; if he finds that the defendant does not suffer from a dangerous mental disorder but is mentally ill, he must issue a transfer order, with an order of conditions, assuming the defendant is still confined in a secure facility.

But if the judge finds that the defendant does not suffer from a dangerous mental disorder and is not mentally ill, he must grant the Commissioner’s application and issue a release order, with an order of conditions. Further,

“[t]he order of conditions issued in conjunction with a release order shall incorporate a written service plan prepared by a psychiatrist familiar with the defendant’s case history and approved by the court, and shall contain any conditions that the court determines to be reasonably necessary or appropriate. It shall be the responsibility of the commissioner to determine that such defendant is receiving the services specified in the written service plan and is complying with any conditions specified in such plan and the order of conditions” (id. [emphasis added]).

Recommitment Orders

At any time while an order of conditions remains in effect, the Commissioner or a district attorney may apply to the court that issued the order, or a superior court in the county where the track-one defendant then resides, for a recommitment order when, in the applicant’s view, the defendant again exhibits a dangerous mental disorder (see id. § 330.20 [14]; see also id. § 330.20 [1] [f]). The applicant must give written notice to the defendant, his counsel and the Mental Hygiene Legal Service, and, if the applicant is the Commissioner, to the district attorney or, if the applicant is the district attorney, to the Commissioner.

Upon receipt of the application, the judge must order the defendant to appear for a hearing to determine his mental status. This order takes the form of a written notice of the time and place of appearance, served either personally or by mail. If the defendant fails to appear in court as directed, the judge may issue a warrant directing a peace officer to take him into custody and bring him before the court, and may direct that the defendant be confined in an appropriate nearby institution (see id. § 330.20 [14]).

At the hearing, the applicant must satisfy the judge that the defendant suffers from a dangerous mental disorder. If the applicant succeeds, the judge must issue a recommitment order, again consigning the defendant to a secure facility for care and treatment for six months. The periodic retention reviews then begin anew (see id.; see also id. § 330.20 [1] [f]).

II.

Robert T.

In July 1995, Robert T., who had a history of psychiatric problems dating back to 1969, in an apparent suicide attempt intentionally drove his car into oncoming traffic and killed another motorist. Robert T. was charged with second-degree manslaughter (Penal Law § 125.15 [1]), and was subsequently found not responsible for this crime by reason of mental disease or defect. The trial judge determined that Robert T. suffered from a dangerous mental disorder, and in March 1996 committed him to a secure OMH facility. In October 1997, Robert T. was transferred, subject to an order of conditions, to a nonsecure OMH facility.

In August 2002, Robert T. was released from confinement into the community, subject to a five-year order of conditions. The order was extended for three years in 2007. In connection with an application in 2010 to extend the order yet again, OMH submitted materials reflecting the hospital forensic committee’s view that Robert T. exhibited an adversarial attitude toward the requirements of his order of conditions, was not always forthcoming in treatment and was unable to use coping skills to manage stressful situations. Robert T.’s treatment team concluded that he continued to display a number of the risk factors that led to his decision to drive recklessly in 1995, which made him “vulnerable to act violently”; further, that Robert T. had a history of reducing the medications necessary for management of his mental condition. The treatment team and the committee unanimously recommended an extension of Robert T.’s order of conditions.

In its proposed order, OMH asked the court to include the following related provisions:

“ORDERED that should the defendant fail to comply with any of the above conditions, or in the event the treatment team becomes aware of a change in his/her mental condition that indicates an emergence of risk factors, he/she shall submit to a psychiatric examination by the staff of the monitoring OMH facility as designated by that Clinical Director.
“ORDERED that should the defendant fail to comply with any of the above conditions and refuse to appear for or comply with a psychiatric examination, the Commissioner shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.”

Robert T. objected to the second of the above-stated requirements — the effective-evaluation provision — on the ground that it conflicted with the recommitment procedures in Criminal Procedure Law § 330.20 (14). Supreme Court Justice Sproat rejected his complaint, and included the provision in an amended order of conditions issued on December 16, 2010.

Allen B.

In 1993, Allen B., who had a long history of hospitalizations and arrests for violent acts, set fire to an occupied building. He had been drinking and was suffering heroin withdrawal at the time. Allen B. was charged with second-degree arson (Penal Law § 150.15) and first-degree reckless endangerment (id. § 120.25); he was subsequently found not responsible for these crimes by reason of mental disease or defect. The trial judge determined that Allen B. suffered from a dangerous mental disorder, and in January 1994 committed him to a secure OMH facility. In July 1995, Allen B. was transferred, subject to an order of conditions, to a nonsecure OMH facility.

In the fall of 2005, Allen B. was released from confinement into the community, subject to a five-year order of conditions. OMH sought to extend the order in 2010. At the time, Allen B. was living in housing operated by a not-for-profit human services agency, and was receiving outpatient services at an OMH psychiatric center, where he had an intensive case manager. While crediting Allen B.’s progress and abstinence from drugs and alcohol, the hospital forensic committee noted his need for continued supervision to stay focused on his employment and mental health, and to function within his residential setting. The committee opined that Allen B. would pose a public safety risk if discharged from supervision.

OMH proposed an order with the effective-evaluation provision, and Allen B. protested that this requirement conflicted with the recommitment procedures in Criminal Procedure Law § 330.20 (14). Supreme Court Justice Sproat rejected his objection, and included the provision in an amended order of conditions issued on December 16, 2010.

Article 78 Petitions

Robert T. and Allen B. (collectively, petitioners) filed CPLR article 78 petitions in the Appellate Division against Justice Sproat, the Commissioner and the District Attorneys of Delaware (Allen B.) and Ulster (Robert T.) Counties. Petitioners sought writs of prohibition barring enforcement of the effective-evaluation provisions on the ground of inconsistency with Criminal Procedure Law § 330.20 (14)’s specific procedure for recommitment orders.

Both matters were submitted to the same panel of the Appellate Division. On November 28, 2012, the court decided in favor of Robert T., with one Justice dissenting, and granted his petition (102 AD3d 176 [2d Dept 2012]); and, in Allen B., the panel, split along the same lines, granted the petition for the reasons stated in Robert T. (100 AD3d 989 [2d Dept 2012]).

The majority in Robert T. held that the effective-evaluation provision, which they called “an ex parte enforcement procedure for addressing violations of the amended order of conditions,” was barred by the recommitment provisions in Criminal Procedure Law § 330.20 (14), the exclusive remedy “if an individual violates an order of conditions and has a history of dangerous mental disorder” (Robert T., 102 AD3d at 182, 183). The majority reasoned that, because recommitment requires notice and an opportunity to be heard, the effective-evaluation provision conflicted with Criminal Procedure Law § 330.20 (14), and that Criminal Procedure Law § 330.20 (1) (o) and (12), which authorize the supervising court to impose “any other condition . . . determined] to be reasonably necessary or appropriate” could not be “conflated so as to ignore [Criminal Procedure Law § 330.20 (14)’s] due process protections” (Robert T., 102 AD3d at 183).

The dissenting Justice distinguished recommitment — the prescribed procedure when a track-one defendant has decompensated to the point of dangerousness — from the effective-evaluation provision, a “preventive and preemptive mechanism” (id. at 191 [Rivera, J., dissenting]). He pointed out that nothing in Criminal Procedure Law § 330.20 precluded Supreme Court from employing the effective-evaluation provision as a “tool for monitoring a potential onset of symptomatology, anticipatory to a likely regression or decompensation”; indeed, “the legislature . . . expressly permitted [the supervising court] to issue conditions which it determine [d] to be ‘reasonably necessary or appropriate’ ” (id.).

Further, the dissenting Justice rejected Robert T.’s argument that the effective-evaluation provision violated his constitutional rights because

“[t]he disputed provision simply permits the Commissioner to apply to the court for a temporary confinement order for the purpose of conducting a psychiatric examination. The court, which is ultimately responsible for maintaining ongoing judicial supervision over [Robert T.’s] treatment, must then determine whether it is appropriate to grant or deny the application” (id. at 192).

Finally, he disputed the majority’s characterization of the effective-evaluation provision as “an ex parte enforcement procedure,” noting that Robert T. was given “ample notice and warning of what is expected of him, and of the consequences that may result should he fail to comply with the listed conditions and refuse to submit to a psychiatric examination” (id.).

Justice Sproat and the Commissioner moved in the Appellate Division for leave to appeal in both Robert T. and Allen B. On April 3, 2013, the court granted both motions, certifying the following question in each case: “Was the opinion and judgment of [the Appellate Division] dated November 28, 2012, properly made?” (2013 NY Slip Op 69361[U] [2013]; 2013 NY Slip Op 69385[U] [2013].)

III.

The extraordinary remedy of prohibition is available only where a judicial or quasi-judicial body acts or threatens to act “without or in excess of its jurisdiction and then only when the clear legal right to relief appears and, in the court’s discretion, the remedy is warranted” (Matter of Schumer v Holtzman, 60 NY2d 46, 51 [1983] [citations omitted]). Here, petitioners can prevail only if Criminal Procedure Law § 330.20 prohibits their restraint for any reason other than failure to obey a court order to appear for a recommitment hearing.

Section 330.20 mandates an order of conditions whenever a track-one defendant moves from secure to nonsecure confinement, or is no longer institutionalized (CPL 330.20 [11], [12]), and allows the court to fashion these orders in whatever way, in its judgment, most effectively protects the public while serving the defendant’s interest in remaining in the least restrictive environment possible. “[T]he order of conditions is the vehicle by which the . . . court effectuates its continuing supervisory authority over” a defendant found not responsible for a crime by reason of mental disease or defect (Matter of Jill ZZ., 83 NY2d 133, 138 [1994]). And while the Commissioner and the district attorney may appeal from an order of conditions, the defendant may not (see CPL 330.20 [21]). This insulates the supervising court from a defendant’s attempt to argue that a condition, thought by the judge to be a necessary prophylactic measure, excessively restricts his freedom.

Accordingly, section 330.20 authorizes orders that, along with a prescribed treatment plan, include “any other condition which the court determines to be reasonably necessary or appropriate” (CPL 330.20 [1] [o] [emphases added]). Notably, the statute repeats this broad language when describing the order of conditions that must accompany a release order, and further requires the Commissioner to “determine that” the defendant is “complying with any conditions specified in [the written service plan] and the order of conditions” (CPL 330.20 [12] [emphases added]).

The effective-evaluation provision enables OMH to evaluate a track-one defendant who does not comply with court-ordered conditions and refuses to be examined voluntarily. Track-one defendants are released into the community with the express understanding that they may endanger the public and themselves if their mental health declines. Indeed, reported cases illustrate the perils posed when such defendants do not follow the regime designed by mental-health professionals and imposed by courts to safeguard their stability and functioning in the community (see e.g. Matter of Francis S., 206 AD2d 4, 8-11 [1st Dept 1994], affd 87 NY2d 554 [1995]; Stone, 73 NY2d at 298-299; Matter of George L., 85 NY2d 295, 299 [1995]). The dangers of noncompliance are exacerbated when a track-one defendant also refuses to submit to a psychiatric evaluation thereby denying vital information to the Commissioner, whom section 330.20 (12) makes responsible for ensuring compliance with orders of conditions issued with release orders.

Contrary to petitioners’ argument, Criminal Procedure Law § 330.20 nowhere suggests that the legislature intended the recommitment procedure to displace a court’s ability to fashion more limited remedies to detect or redress the deterioration of a track-one defendant’s mental health. As already discussed, the legislature expressly vested courts with authority to impose “any other condition” determined “to be reasonably necessary or appropriate” (CPL 330.20 [1] [o]). Under petitioners’ narrow interpretation of this language, OMH would be forced either to wait until the defendant exhibited overt signs of dangerousness and then pursue recommitment, or seek the return of every at-risk defendant to a secure facility for at least six months, even though less intrusive measures might suffice. The first option jeopardizes the public; both options compromise the defendant’s welfare and cut against the grain of common sense.

Petitioners’ view of the statutory scheme also conflicts with our oft-espoused view that “the provisions of CPL 330.20 for imposing orders of conditions” are the means by “which the criminal court retains supervisory authority over insanity acquittees” (Matter of Francis S., 87 NY2d 554, 562 [1995]). If a supervising court has no power to ensure that a defendant follows the order of conditions, it is hard to see how the court then carries out “continuous supervision over the acquittee . . . through an order of conditions” (id. at 563). Instead, the court would effectively be required to “abandon[ ] ... all supervision of the acquittee [who does not abide by an order of conditions and] whose potential violent conduct is controllable only when medicated” until he has decompensated to the point of dangerous mental disorder — a result that the legislature “could not rationally have intended” given that it would “subject the public to [an] enormous risk” (Matter of Oswald N., 87 NY2d 98, 104 [1995] [internal quotation marks omitted]).

We have interpreted other provisions in Criminal Procedure Law § 330.20 broadly, consistent with the legislative purpose. For example, we held in Oswald N. that a supervising court may properly impose conditions on a track-one defendant’s release for more than 10 years even though the statute does not expressly authorize such an extension. Instead, the statute in question — Criminal Procedure Law § 330.20 (1) (o) — states that an order of conditions “shall be valid for five years from the date of its issuance, except that, for good cause shown, the court may extend the period for an additional five years.” We observed that “nothing in the language of CPL 330.20 . . . affirmatively limits courts to only two consecutive five-year orders of conditions” (87 NY2d at 103). We have also determined that the requirement that the State prove “current dangerousness” does not “constrain a court to determining dangerousness as of the moment in time that a defendant is before it” (George L., 85 NY2d at 305).

As for petitioners’ due process objections, the language of the effective-evaluation provision does not in any way suggest that a court would issue an examination order ex parte or without notice or a hearing. This provision simply allows OMH to make an application to the supervising judge, who retains discretion to require whatever procedures he deems necessary to protect a track-one defendant’s rights and properly decide the application. Moreover, the effective-evaluation provision is limited and targeted; it contemplates a temporary removal to an OMH facility for only so much time as it takes to conduct an effective psychiatric examination, and only after the court finds that the track-one defendant has both neglected to comply with court-ordered conditions and refused to be evaluated.

In Matter of K.L., we determined that the involuntary detention of a psychiatric patient for up to 72 hours, while a substantial deprivation of liberty, comported with due process. Part of our reasoning there was that “the state’s interest in immediately removing from the streets noncompliant patients previously found to be, as a result of their noncompliance, at risk of a relapse or deterioration likely to result in serious harm to themselves or others is quite strong” (1 NY3d at 373). This interest is even stronger in the case of track-one defendants like petitioners, who have committed violent crimes and remain at risk of doing so again if their mental health worsens.

Finally, we have examined petitioners’ other claims and consider them to be without merit.

Accordingly, in both cases the judgment of the Appellate Division should be reversed, without costs, the petition dismissed, and the certified question not answered as unnecessary.

Chief Judge Lippman (dissenting). The question for our decision is not one of policy. It is whether there is law to authorize the State’s presently proposed initiative to securely confine conditionally released insanity acquittees outside the substantive and procedural due process framework set forth in CPL 330.20 (14).

It is not disputed that CPL 330.20 — the provisions of which are recounted at length in the majority opinion — comprehensively governs the disposition of insanity acquittees. The determinative issue, then, is whether that statute contains any provision permitting what the State proposes, namely, the summary removal of a released insanity acquittee to a secure psychiatric facility based simply on ex parte allegations of noncompliance with treatment or monitoring requirements imposed at the time of the acquittee’s release. The statute contains nothing answering to this description. It is, to the contrary, unequivocal, not only as to the singular substantive standard for recommitting insanity acquittees — namely, affliction with a dangerous mental disorder — but as to the process that must be afforded when secure recommitment is sought. The State’s application must be made on notice to the defendant and his counsel; there must be a hearing on the application, at which the burden is upon the State to prove the substantive ground for recommitment; and, in the event an application is granted, there are statutorily prescribed commitment periods at the conclusion of which the propriety of any proposed retention of the defendant is subject to judicial review.

The State’s contention, now made law by a vote of judges, that an insanity acquittee may be securely psychiatrically committed on the basis of mere allegations of noncompliance with mandated treatment or monitoring, significantly undermines the substantive due process and procedural protections of CPL 330.20 (14); the new expedited species of removal is, in contrast to the legislature’s recommitment provision, essentially standardless and without process to guard against an erroneous deprivation of liberty. Indeed, the State makes no provision in its “effective examination” order even for post hoc judicial review of the summary commitment it allows. While the State urges that its objective is modest — simply to allow for the “effective examination” of the defendant — it is remarkably vague about what that will entail, either temporally or psychiatrically, and it is, in any event, axiomatic that “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection” (Addington v Texas, 441 US 418, 425 [1979] [emphasis supplied]). Here there is none.

The approach now taken is not consonant with CPL 330.20’s vaunted objective of “safeguarding the rights of defendants found not responsible” (People v Stone, 73 NY2d 296, 303 [1989]). It is manifest that when the legislature afforded judges power to prescribe “reasonably necessary or appropriate” conditions of release (CPL 330.20 [1] [o]) it did not allow what the orders before us permit. The Court’s holding to the contrary slights and significantly undoes the legislature’s careful work in crafting CPL 330.20 (14) to comport with the demands of due process. Moreover, even if there were no constitutional impediment to the taking of liberty in the manner contemplated by these orders, characterizing a provision authorizing summary secure confinement as a “condition” of release prescribable pursuant to section 330.20 (1) (o) presents a significant semantic challenge, which the majority, referring to the provision as a “requirement,” glosses over and the State purports to meet by claiming that the provision “resembles” other provisions qualifying as conditions. The reality is that the provision at issue does not set forth conditions of release, but grounds for secure confinement and that those grounds have no statutory provenance.

The State points out, correctly, that New York does have a statute that allows psychiatric confinement for evaluative purposes on the basis of ex parte orders (see e.g. Mental Hygiene Law § 9.60 [n] [Kendra’s Law]). But the presently salient point is that when the legislature has made this extraordinary removal mechanism available it has done so expressly, carefully defining both the class of persons to whom it may be applied and the circumstances immediately justifying its use. This has not been done in CPL article 330, probably because the power to recommit pursuant to CPL 330.20 (14) has been considered adequate to deter and, if necessary, respond to violations of conditions governing an insanity acquittee’s release. We have noted that

“[t]he legislative objectives of ensuring the safety of the public, safeguarding the rights of defendants found not responsible, and providing for the treatment of acquittees suffering from a current mental illness are secured by recommitment provisions [of CPL 330.20 (14)] designed to ensure that all persons who develop or relapse into a dangerous mental disorder during the pendency of the order of conditions are amenable to a secure psychiatric placement” (Stone, 73 NY2d at 303).

It is not possible to discern a basis for the Court’s present implicit reevaluation of this assessment, particularly since the potent enforcement mechanism of CPL 330.20 (14) is supplemented where released insanity acquittees are concerned by the more broadly applicable civil emergency commitment provisions of Mental Hygiene Law article 9 (see Mental Hygiene Law §§ 9.37, 9.39, 9.40, 9.43).

Petitioners could, of course, be summarily committed for psychiatric examination if they met the criteria of Mental Hygiene Law § 9.60 (c) for assisted out-patient treatment and they failed to comply with their prescribed treatment regimen (see Mental Hygiene Law § 9.60 [n]). It would appear, however, that they are not candidates for assisted out-patient treatment, since, to mention but one disqualifying factor, they have, as CPL 330.20 releasees, been found not to be mentally ill (see CPL 330.20 [12]). The legislature went to some trouble closely to define the class for whom summary commitment might be appropriate (see Mental Hygiene Law § 9.60 [c]), a circumstance we deemed pivotal in upholding Mental Hygiene Law § 9.60 (n) as against constitutional challenge (Matter of K.L., 1 NY3d at 373). It is not plausible that the legislature casually — practically tacitly— has sanctioned similarly precipitous intervention respecting persons not within that or any other relevantly defined class.

It is easy to suppose that insanity acquittees present elevated risks. When, however, they have been released pursuant to an order of conditions it is usually after years of extraordinarily closely monitored institutional care and upon judicial findings that they are no longer mentally ill and do not suffer from a dangerous mental disorder (CPL 330.20 [12]). If “effective examination” in a secure inpatient psychiatric facility is to be used as to this class of individuals as a summary enforcement device, it must, I believe, be pursuant to authority expressly conferred by the legislature. Judges have no power unilaterally to provide for such an extraordinary intervention, particularly in the context of a statute expressly conditioning secure psychiatric re-institutionalization upon the prior satisfaction by the State of rigorous constitutionally-rooted substantive and procedural requirements.

Accordingly, I dissent and would affirm the well-considered decision and judgments of the Appellate Division.

Judges Graffeo, Smith and Abdus-Salaam concur with Judge Read; Chief Judge Lippman dissents in an opinion in which Judges Pigott and Rivera concur.

In each case: Judgment reversed, without costs, petition dismissed, and certified question not answered as unnecessary.

      . The statute defines a “mentally ill” defendant to include one who “currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of [OMH], is essential to such defendant’s welfare and [whose] judgment is so impaired that he is unable to understand the need for such care and treatment” (CPL 330.20 [1] [d]). Where a defendant is mentally retarded, “mentally ill” also means, for purposes of section 330.20, “that the defendant is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the mentally retarded and developmentally disabled under the jurisdiction of the state office of mental retardation and developmental disabilities” (id.).

      . The dissent suggests that OMH might, alternatively, resort to “the more broadly applicable civil emergency commitment provisions of Mental Hygiene Law article 9” (see dissenting op at 382). Petitioners agree. But this assumes that a track-one defendant is subject to article 9 while still under court supervision pursuant to section 330.20 — i.e., before the supervising court issues a discharge order (see CPL 330.20 [1] [n]; [13]). As the dissent itself acknowledges, section 330.20 “comprehensively governs the disposition” of these particular defendants (dissenting op at 380). In any event (and perhaps for this reason), the Mental Hygiene Law does not account for the unique risks posed by track-one defendants who have, by definition, committed a crime and once been adjudged to suffer from a dangerous mental disorder. And, comparable to recommitment under Criminal Procedure Law § 330.20 (14), civil commitment under article 9 is available only for those individuals whose mental illness has already degenerated sufficiently to be “likely to result in serious harm to themselves or others” (Matter of K.L., 1 NY3d 362, 368 n 1 [2004]). In short, article 9 does not permit the prophylactic intervention contemplated by an effective-evaluation provision.
      Additionally, article 9 proceedings utilize standards appropriate for those with no prior history of mental illness or criminal violence, and therefore may not give proper weight to factors important for assessing the mental health of a track-one defendant. For example, substance abuse alone may not be enough to support commitment under article 9. But if a track-one defendant is directed to refrain from abusing drugs, a violation of that condition should be sufficient to justify a psychiatric evaluation. Here, for example, substance abuse strongly correlates with Allen B.’s past violent behaviors.

      . The statute provides in relevant part:
      “Recommitment order. At any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order, or to a superior court in the county where the defendant is then residing, for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder. The applicant must give written notice of the application to the defendant, counsel for the defendant, and the mental hygiene legal service, and if the applicant is the commissioner he must give such notice to the district attorney or if the applicant is the district attorney he must give such notice to the commissioner. Upon receipt of such application the court must order the defendant to appear before it for a hearing to determine if the defendant has a dangerous mental disorder. Such order may be in the form of a written notice, specifying the time and place of appearance, served personally upon the defendant, or mailed to his last known address, as the court may direct. If the defendant fails to appear in court as directed, the court may issue a warrant to an appropriate peace officer directing him to take the defendant into custody and bring him before the court. In such circumstance, the court may direct that the defendant be confined in an appropriate institution located near the place where the court sits. The court must conduct a hearing to determine whether the defendant has a dangerous

        mental disorder. At such hearing, the applicant, whether he be the commissioner or the district attorney must establish to the satisfaction of the court that the defendant has a dangerous mental disorder. If the applicant is the commissioner, the district attorney shall be entitled to appear and present evidence at such hearing; if the applicant is the district attorney, the commissioner shall be entitled to appear and present evidence at such hearing. If the court finds that the defendant has a dangerous mental disorder, it must issue a recommitment order. When a defendant is in the custody of the commissioner pursuant to a recommitment order, the procedures set forth in subdivisions eight and nine of this section for the issuance of retention orders shall govern the application for and the issuance of a first retention order, a second retention order, and subsequent retention orders” (emphasis supplied).

      . Even if it were true that, as the majority suggests (majority op at 377 n 2), a track one CPL 330.20 releasee could not be hospitalized in an emergency pursuant to article 9 of the Mental Hygiene Law — a proposition that is doubtful both legally and prudentially — it would not advance the majority’s argument as to what CPL 330.20 itself permits. Neither that statute, nor for that matter any other, permits involuntary psychiatric hospitalization without a substantive standard and without process.
      The majority’s assertion that article 9’s involuntary hospitalization standards are inappropriate for those with a prior history of mental illness or criminal violence (majority op at 377 n 2) is without empirical basis. Article 9 involuntary admittees very frequently suffer from chronic mental illness and many have histories, if not of crime, of conduct that could have been treated as criminal.

      . Prominent among the extensive criteria for assisted out-patient treatment (see Matter of K.L., 1 NY3d 362, 367 [2004]) is the requirement that the patient suffers from mental illness.

      . Petitioners present no exception. Each was institutionalized for years (Robert T., for more than 6 years, and Allen B., for nearly 12) until, after extensive clinical evaluation and the phased lessening of restrictions pursuant to court orders, each was ordered released pursuant to an order of conditions.


source: Caselaw Access Project

author: Read, J. Smith, J.

license: Public Domain

text:
    [15 NE3d 792, 991 NYS2d 779]
    Rhonda Williams, Individually and as Parent and Natural Guardian of A., an Infant, Respondent, v Sharon T. Weatherstone, Defendant, and Jordan-Elbridge Central School District, Appellant.
    Argued March 25, 2014;
    decided May 13, 2014

      POINTS OF COUNSEL

      Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of counsel), and Petrone & Petrone, P.C., for appellant.
    I. The Jordan-Elbridge Central School District owed no legal duty to the plaintiff student, who was injured while outside of its custody and control. (Pratt v Robinson, 39 NY2d 554; Greenberg, Trager & Herbst, LLP v HSBC Bank USA, 17 NY3d 565; Turcotte v Fell, 68 NY2d 432; Akins v Glens Falls City School Dist., 53 NY2d 325; Pulka v Edelman, 40 NY2d 781, 41 NY2d 901; Kimbar v Estis, 1 NY2d 399; Lauer v City of New York, 95 NY2d 95; Eiseman v State of New York, 70 NY2d 175; Sheila C. v Povich, 11 AD3d 120; Martinez v City of New York, 90 AD3d 718.) II. The purported negligence of the Jordan-Elbridge Central School District was not a proximate cause of plaintiffs injuries. (Akins v Glens Falls City School Dist., 53 NY2d 325; Salvador v New York Botanical Garden, 71 AD3d 422; Gordon v Muchnick, 180 AD2d 715; Hanley v East Moriches Union Free School Dist. II, 275 AD2d 389, 95 NY2d 769; Pollock v Bones, 52 AD3d 343; Cominsky v City of Syracuse, 21 Misc 3d 1135[A], 2008 NY Slip Op 52392[U]; Squitire v Middle Country Cent. School Dist., 4 Misc 3d 1025[A], 2004 NY Slip Op 51044[U]; Fotiadis v City of New York, 49 AD3d 499; Cruz v City of New York, 6 AD3d 644; Castillo v Amjack Leasing Corp., 84 AD3d 1298.) III. The Jordan-Elbridge Central School District’s turn around procedure after a bus stop is missed does not violate mandatory rules or regulations, or guidelines adopted by the District. (Diaz v New York Downtown Hosp., 99 NY2d 542; Bax v Allstate Health

      Care, Inc., 26 AD3d 861; Davidson v Sachem Cent. School Dist., 300 AD2d 276; Merson v Syosset Cent. School Dist., 286 AD2d 668; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384; Kosicki v Spring Garden Assn., Inc., 42 AD3d 909; Carrasquillo v City of New York, 78 AD3d 635; Cave v Town of Galen, 4 Misc 3d 1026[A], 2004 NY Slip Op 51073[U], 23 AD3d 1108; Barretto v City of New York, 229 AD2d 214, 90 NY2d 805; David v County of Suffolk, 1 NY3d 525.)

      Harris Beach PLLC, Pittsford (A. Vincent Buzard, David M. Capriotti and Lauren H. Seiter of counsel), for respondent.
    I. Plaintiffs version of the facts must be accepted as true in considering this motion for summary judgment. (Rizk v Cohen, 73 NY2d 98; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 27 NY2d 410; Weller v Colleges of the Senecas, 217 AD2d 280; Hourigan v McGarry, 106 AD2d 845.) II. The Jordan-Elbridge Central School District owed a duty to the plaintiff because her injury occurred during the act of busing and because the District placed her in a hazardous setting. (Pratt v Robinson, 39 NY2d 554; McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, Seneca County, 179 Misc 333, 264 App Div 943, 289 NY 800; Ernest v Red Cr. Cent. School Dist., 93 NY2d 664; Norton v Canandaigua City School Dist., 208 AD2d 282; Hanley v East Moriches Union Free School Dist. II, 275 AD2d 389; Bowers v City of New York, 294 AD2d 526; Harker v Rochester City School Dist., 241 AD2d 937; Vernali v Harrison Cent. School Dist., 51 AD3d 782; Womack v Duvernay, 229 AD2d 488; Keiser v Elmer, 225 AD2d 589.) III. The Jordan-Elbridge Central School District is liable under the cases which impose liability on a person for causing another person to believe that entering the street is safe. (Riley v Board of Educ. of Cent. School Dist. No. 1, 15 AD2d 303; Robbins v New York City Tr. Auth., 105 AD2d 616; Barber v Merchant, 180 AD2d 984.) IV. The Jordan-Elbridge Central School District owed a separate and independent special duty to the plaintiff as a result of the special relationship created by the education plan. (Wenger v Goodell, 220 AD2d 937; Cuffy v City of New York, 69 NY2d 255; Reyes v City of New York, 238 AD2d 563; Metz v State of New York, 20 NY3d 175; McLean v City of New York, 12 NY3d 194; Florence v Goldberg, 44 NY2d 189; School Comm. of Burlington v Department of Ed. of Mass., 471 US 359.) V. Affirming the Fourth Department would not expand the liability of school districts, but if the Court determines that the Jordan-Elbridge Central School District did not owe a duty to the plaintiff under Pratt v Robinson (39 NY2d 554 [1976]), that decision should be modified or limited. (Ernest v Red Cr. Cent. School Dist., 93 NY2d 664.) VI. The Appellate Division properly determined that a question of fact exists as to whether the Jordan-Elbridge Central School District proximately caused plaintiff’s injury. (Mirand v City of New York, 84 NY2d 44; Doe v Fulton School Dist., 35 AD3d 1194; Bell v Board of Educ. of City of N.Y., 90 NY2d 944; Bello v New York City Tr. Auth., 50 AD3d 511; Hanley v East Moriches Union Free School Dist. II, 275 AD2d 389; Pollock v Bones, 52 AD3d 343; Cominsky v City of Syracuse, 21 Misc 3d 1135[A], 2008 NY Slip Op 52392[U]; Squitire v Middle Country Cent. School Dist., 4 Misc 3d 1025[A], 2004 NY Slip Op 51044[U]; Kush v City of Buffalo, 59 NY2d 26; Gordon v Eastern Ry. Supply, 82 NY2d 555.)
   OPINION OF THE COURT

Read, J.

In Pratt v Robinson (39 NY2d 554, 561 [1976]), we held that a school district that "undertake[s] to transport students” assumes a common-law duty to “perform so much as it ha[s] undertaken in a careful and prudent manner.” We are called upon to decide whether this duty had arisen here where a child was struck by a car before the approaching school bus stopped to pick her up. We conclude that defendant Jordan-Elbridge Central School District (the District) did not owe this or any other common-law duty to the child under the circumstances presented.

I

On the date of the accident, March 13, 2008, A. was a 12-year-old sixth-grade student at Jordan-Elbridge Middle School. Her mother, plaintiff Rhonda Williams (plaintiff), described A., who was born in 1995, as having exhibited “behavioral issues” while in kindergarten. Plaintiff at first chalked this up to A.’s young age (she was a four-year-old kindergartner) and grief over the then recent death of her father. But even after A. repeated kindergarten, she remained “very behavioral, noncom-pliant, [and] couldn’t identify letters, numbers, that type of thing.” A. was diagnosed by her doctors in the Albany area, where plaintiff then resided, with ADD/ADHD (attention deficit disorder/attention deficit hyperactivity disorder) and mild mental retardation. At the age of seven, A. began receiving Supplemental Security Income benefits on account of her mental disability.

Plaintiff moved from the Albany to the Syracuse area in March 2005. Desiring to mainstream her daughter’s schooling as much as possible, she enrolled A. in the Jordan-Elbridge school system, subject to an individualized education plan (IEP). A.’s IEP for the 2007-08 school year, which plaintiff assisted in formulating, specified under “Special Transportation Needs” that A. “should be transported to school even when she is within walking distance, due to concerns regarding her safety (big bus).” There was no provision for any escort or monitor to assist A. with busing.

Plaintiffs residence in March 2008 fronted Route 5, a busy state highway. A.’s designated bus stop was at the end of the roughly 20-yard driveway connecting her home to Route 5. A red dumpster was located on the grass to one side of the driveway, about 15 to 20 feet away from the mailbox, which is where the school bus stopped. Plaintiff testified that A. typically left the house at about 6:50 a.m., and played for 10 or 15 minutes near the dumpster while waiting for the bus to arrive; that she imposed “a very strict rule” that A. was never allowed past the dumpster at any time when playing in the yard; that she told A. to wait at the dumpster until the bus completely stopped at the mailbox; and that A. was never allowed to cross Route 5 unescorted. According to plaintiff, A. dependably followed and observed these “guidelines” and “boundaries.”

On March 12, 2008, the District’s transportation supervisor rerouted the bus that A. had been taking since the beginning of the school year so as to pick up several children from a family newly moved to the District. Since this bus no longer passed A.’s house, he assigned her to another bus whose existing route did. A.’s house became the first stop on this bus’s route; her pick up and drop off times remained almost exactly the same. There was a monitor on this bus for students who, unlike A., were subject to IEPs that required the District to provide them with extra assistance during the commute to and from school. But the monitor knew A. as she had previously worked with her one-on-one as a teacher’s aide. They became reacquainted when A. rode home after school on March 12th on her newly assigned bus.

On March 13th, A.’s newly assigned bus, with the monitor onboard, left the bus garage on time, at about 6:50 a.m., or before sunrise. A.’s house was less than 10 minutes away, much closer than the previous first stop on this route, and the bus driver simply forgot to pick her up as he traveled west on Route 5. Neither the driver nor the monitor waved or otherwise signaled to A., whom the monitor glimpsed standing near the red dumpster as the bus passed by.

Alerted by the monitor to the missed stop, the bus driver proceeded 250 feet or so farther west to a vacant gas station on the corner where Route 3IB meets Route 5 at an angle. He turned right into Route 3 IB and entered the gas station, turned the bus around to face Route 5, waited for eastbound traffic to clear (there was no westbound traffic at the time) and exited onto Route 5, traveling east behind a car operated by defendant Sharon T. Weatherstone (Weatherstone). The bus driver intended to go past A.’s house on the opposite (east) side of Route 5 a few hundred feet to a golf course, also on the highway’s east side, where he could turn around again and pull back onto Route 5 traveling west. This would put him in position to pick up A. at her designated stop at the foot of the driveway to her house.

Shortly after the bus driver headed east on Route 5, though, both he and the monitor caught sight of what appeared to be debris being flung up into the air in front of the Weatherstone vehicle. Weatherstone steered her car off onto the shoulder of the highway, and as the bus driver slowed the bus down, the monitor spotted A. lying, obviously seriously injured, in the eastbound lane.

The State Police’s “Collision Reconstruction Findings Report” (Collision Report) attributed the accident primarily to pedestrian error and secondarily to an obstructed view resulting from Weatherstone’s failure to adequately clear frost from her car’s windshield. When asked at the General Municipal Law § 50-h hearing if she had ever queried A. about “why she went out into the road” that morning, plaintiff replied that A. told her “that they forgot her and then they stopped and she looked both ways and she ran,” which was the only explanation A. ever gave her. A. also testified about the accident at the 50-h hearing and gave a deposition. While her testimony was sketchy and variable, she fairly consistently said that she saw the bus go by and turn around, and that she looked both ways before crossing the road to catch the bus on the other side. A. further testified that plaintiff had told her to “be careful in the middle of the road . . . [b]ecause cars can hit you.”

On October 27, 2008, plaintiff commenced this personal injury action individually and on behalf of A. against Weatherstone and the District. The District moved for summary judgment on October 21, 2011, seeking an order dismissing plaintiff’s complaint and all cross claims against it. The District argued generally that it owed no duty to a student not within its physical care or custody and that, in any event, its purported negligence was not a proximate cause of A.’s injuries. The District and plaintiff submitted warring affidavits from experts in the field of school bus transportation. The experts differed about the propriety of the actions or inactions of District employees, and whether anything these employees (especially the bus driver) did or failed to do proximately caused the accident.

On March 1, 2012, Supreme Court denied the District’s motion in its entirety. Citing Pratt, the judge noted that while a school district “owes its students a duty to exercise the same degree of care toward them as a reasonably prudent parent. . . under similar conditions,” this duty “exists only so long as a student is in [the district’s] care and custody.” In this case, however, he held that A.’s status as a special needs child justified an “expansion” of the District’s duty. The judge also denied that part of the District’s motion seeking to dismiss the complaint for lack of proximate cause. He reasoned that the conflicting expert opinions created issues of fact and credibility for the jury. The District appealed.

On March 22, 2013, the Appellate Division, with two Justices dissenting in part, modified on the law and, as so modified, affirmed (104 AD3d 1265 [4th Dept 2013]). The majority, disagreeing with Supreme Court, rejected plaintiff’s claim that the District owed A. a duty of care because she was a special education student with an IEE The court observed that the IEP “required only that [the District] provide transportation to school [and] did not place [A.] within [the District’s] orbit of authority while she waited for the school bus, [or] give rise to a duty ... to ensure that the child was safe while waiting for the bus outside her home” (id. at 1266 [internal quotation marks and citation omitted]).

Nonetheless, the Appellate Division concluded that, “under the facts presented,” A. was

“within the orbit of [the District’s] authority such that [it] owed a duty to [her] based upon the actions of [the District]; i.e., the bus arrived at the bus stop, passed it, and the driver turned around to pick up the child. Thus, ‘the injury occurred during the act of busing itself, broadly construed’ . . . Where, as here, it was reasonably foreseeable that the child would be placed ‘into a foreseeably hazardous setting [the District] had a hand in creating,’ [the District] owed a duty to the child” (id., quoting Pratt, 39 NY2d at 561, and Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 672 [1999], rearg denied 93 NY2d 1042 [1999], respectively [emphasis added]).

The court agreed with Supreme Court that an issue of fact existed about whether the District’s alleged negligence proximately caused the accident. The Appellate Division agreed with the District, however, that Supreme Court should have granted it summary judgment on plaintiffs claim, as amplified by the bill of particulars, of negligence based on purported violations of the Vehicle and Traffic Law.

The dissenting Justices would have reversed Supreme Court’s order and granted the District’s motion in its entirety. Relying on Pratt and Norton v Canandaigua City School Dist. (208 AD2d 282 [4th Dept 1995], lv denied 85 NY2d 812 [1995], rearg denied 86 NY2d 839 [1995] [the school district had not yet assumed custody and control over a student injured when she crossed the street to wait for her school bus]), they observed the “well settled” rule that the District’s duty flowed from physical custody and control; that at the time of the accident the District did not have physical custody of the child, who thus remained outside its orbit of authority; and that the District therefore “owed no duty to the child in this situation, and, absent duty, there can be no liability” (id. at 1267 [internal quotation marks omitted]).

The dissenting Justices rejected plaintiff’s contention, endorsed by the majority, that the District “assumed a duty to the child as a consequence of the potentially hazardous situation allegedly created by the school bus driver in turning the bus around after missing the bus stop” (id. at 1268 [internal quotation marks omitted]). They distinguished Ernest on the ground that the District

“did not release the child from its custody and control into a situation of immediate and foreseeable danger. In fact, the child was never in [the District’s] custody or control on the day of the accident. Instead, the child was and remained in the custody and care of plaintiff, her mother, who was at home at the time of the accident. Plaintiff has cited no cases, and we could find none, where a school district was found to owe a duty of care to a child who was not in its custody at the time of the injury or who was not released from the school district’s custody into a hazardous condition that caused the child’s injury” (id. [citations omitted]).

On June 7, 2013, the Appellate Division granted the District leave to appeal to us, and certified the following question: “Was the order of [the Appellate Division] entered March 22, 2013, properly made?” We answer the question in the negative for the reasons that follow.

II

As the courts below and plaintiff recognize, Pratt is our seminal case on the duty owed by a school district to students whom it transports. Plaintiff also urges that, quite apart from Pratt, our decision in Ernest should compel us to conclude that the District owed a duty of care to A. We therefore consider both cases in some detail.

Pratt

In Pratt, a seven-year-old child, having gotten off the bus at the regular bus stop closest to her family’s residence, was struck by a truck and severely injured while crossing a heavily-trafficked street three blocks away from the stop while walking home. The school district had established the bus route; the actual transportation was supplied by a city-owned bus company. In ensuing litigation against the city, the school district and the bus company, plaintiffs (the child and her father) argued that the bus stop’s location, while safe, was nonetheless negligently planned because it was located such that the child would have to cross the busy street while en route home.

Noting that “[n]egligence of the sort here alleged can only be found if there existed a duty on the part of the school district to transport [the child] to a location from which she could walk home without crossing any dangerous streets on the way,” we explored potential sources of such a duty (39 NY2d at 559). We first decided that the legislature had not imposed any duty by statute. Then we observed that the “common-law custodial duty of a school toward its pupils” did not “supply any basis for liability” because that duty “stems from” and is “coextensive with and concomitant to [the school’s] physical custody of and control over the child” (id. at 560). We added that “[w]hen that custody ceases because the child has passed out of the orbit of [the school’s] authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases” (id.).

Finally, we considered “one further and major source of liability”; namely, a school district that undertakes to transport students has a duty to perform this task “in a careful and prudent manner” (id. at 561). We noted that “[u]nder certain circumstances,” school districts in New York and elsewhere

“have been held liable on this theory when children were injured, even after they had technically been discharged from the bus (see McDonald v Central School Dist. No. 3, 179 Misc 333, affd 264 App Div 943, affd 289 NY 800; Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239; Gleich v Volpe, 32 NY2d 517; Shannon v Central-Gaither Union School Dist., 133 Cal App 124; Gazaway v Nicholson, 61 Ga App 3, affd 190 Ga 345; Tort Liability of Public Schools and Institutions of Higher Learning for Accidents Associated With the Transportation of Students, Ann., 34 ALR3d 1210). Without exception, however, the liability in those cases stemmed either from the fact that the injury occurred during the act of busing itself, broadly construed, or from the violation of a specific statutory duty to see children safely across the street at which the bus is stopped, when their route took them across that street. No such issues have been raised in this case, nor would any apply to the facts here. New York’s Vehicle and Traffic Law (§ 1174, subd [b]), for example, requires school bus drivers to stop, to remain stopped with their lights flashing, and to instruct children in the proper crossing of the street in front of the bus” (id. at 561 [emphasis added; other emphasis omitted]).

Briefly reviewing the three New York cases cited, we mentioned that McDonald pinpointed the “genesis” of what became the duties imposed by section 1174 (b) to “the fact that, when children must cross the street where the bus stops, the bus itself acts as an obstacle to their clear view of oncoming traffic”; and commented that “[interestingly, even such statutorily based liability addresses itself to the students’ transition from the area of transportation undertaken by the school district to the area which was outside its scope” (id. [emphasis added]). In the same vein, we added that in Van Gaasbeck “we did not in any way suggest any sphere of liability beyond the statutorily mandated one within the area of disembarkation” (id. [emphasis added]). And finally, we noted that Gleich dealt with whether the school district should be held liable for placing a bus stop at a location allegedly unsafe for disembarkation. In each of these three cases, and in the two out-of-state cases cited, a child was injured shortly after alighting from a school bus.

We further remarked that “[c]ases in other States in which liability has been imposed for accidents resulting from the negligence of third parties after a child has left a bus stop area have been rare”; that “[n] early all of them fit within the analysis we have presented in that they too involved either negligence toward a child . . . still in the custody of the school or else failure to perform a specific duty imposed by statute”; and that those

“few instances in which other States have imposed liability for injuries occurring at a point distant from the bus stop involved the construction of a particular contractual obligation or else represented instances of straightforward judicial ‘legislation’ of a new duty on the part of school districts rather than the application of even liberal existing legal principles” (id. at 562 [citations omitted and emphases added]).

We perceived “no basis, either in statutes or common law, for the creation of a school’s duty to protect its students from hazards which may beset them once they are on their way home and outside the control of the school” (id.). Thus, in Pratt we concluded that the school district fulfilled its duty to provide busing with due care; specifically, since “it did not undertake to, and in fact did not, provide transportation from the bus stop to the home of the plaintiffs, there was no activity for the performance of which it could be held negligent” (id. at 564).

Ernest

In Ernest, a second-grade student was hit by a truck and severely injured while crossing the road on which his school was situated. There were no sidewalks on this road, and, additionally, there were no traffic signals or crosswalks to assist students who needed to cross the road to get to the nearest sidewalk, north of the school. Because of these conditions, the school, as a safety precaution, did not allow students to leave the school grounds on foot at the end of the day until all the school buses had departed. On the day of the accident, though, the school violated this long-standing policy. The driver of the truck did not see the student because his view was obstructed by a departing bus. The accident took place about 167 feet north of the school’s northern boundary line.

We concluded that Pratt did not preclude liability because there, the plaintiff schoolchild was “ ‘set down in a safe spot, and nothing untoward . . . occurred in the course of . . . disembarkation’ ” (Ernest, 93 NY2d at 672 [emphasis omitted], quoting Pratt, 39 NY2d at 560). By contrast, the injured plaintiff in Ernest

“was not released to a safe spot but to a foreseeably hazardous setting partly of the School District’s making. Thus, while a school has no duty to prevent injury to schoolchildren released in a safe and anticipated manner, the school breaches a duty when it releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating” (93 NY2d at 672 [emphases added]).

We reversed Supreme Court’s grant of summary judgment to the school district, affirmed by the Appellate Division, concluding that “a jury could find that [the district] breached this legal duty by releasing [the child] to walk home before the school buses were out of the vicinity” (id.).

In support of our holding, we discussed McDonald in more detail than we had in Pratt. In McDonald, a child, after having exited a school bus, was hit by a car whose driver failed to stop as required by law. The school district had adopted a rule, communicated to students, that whenever a school bus stopped on the opposite side from a child’s home, the child should walk directly in front of the bus when crossing the street. In rejecting the school district’s motion for a new trial, we concluded that the jury might well have found that the district, by making this rule, assumed a duty to protect the child against the danger of approaching traffic and should have gone further by requiring the driver to signal when it was safe to cross the street. In Ernest, we summed up McDonald as “standing] for the proposition that a school district’s duty of care requires continued exercise of control and supervision in the event that release of the child poses a foreseeable risk of harm” (93 NY2d at 672 [emphasis added]).

III

Plaintiff proposes four theories to support the existence of a duty owed A. by the District: first, that A.’s injuries “occurred during the act of busing itself, broadly construed” (Pratt, 39 NY2d at 561); second, citing Ernest, that the District “placed” A. in a hazardous situation which it created; third, that the District is liable under Riley v Board of Educ. of Cent. School Dist. No. 1 (15 AD2d 303 [3d Dept 1962]) and similar Appellate Division cases that impose a duty of care on someone who signals another that crossing the street is safe; and fourth, that by providing A. “special busing services” because of her mental limitations, the District owed her a separate and independent special duty. Finally, in the alternative, plaintiff argues that we should limit or modify Pratt and Ernest and hold what she claims these cases already imply: that a school district owes a duty to a child if it creates a foreseeably hazardous situation prior to the time the bus stops for boarding. We address each of these theories in turn.

The Act of Busing, Broadly Construed

Plaintiff reasons that A.’s

“injury clearly occurred during the act of busing[,] broadly construed[,] because the bus arrived at the bus stop, passed the plaintiff and turned around to pick her up. The bus was present at the scene and was attempting to pick up the child. The child saw the bus, was confused by its operation and was attempting to catch the bus, all of which relates to the act of busing[,] broadly construed.”

This argument divorces the meaning of the phrase “the act of busing itself, broadly construed” from its very particular context. We used this expression in Pratt solely with reference to cases where we, and other courts, have extended a school’s duty to transport students in a careful and prudent manner to cover a child injured just after alighting from a school bus. All the cases that we discussed or cited in Pratt shared this fact pattern. We concluded that a school owed a duty of care to a child within this often statutorily-based “area of disembarkation” or “transition” even though, having stepped off the bus, the child was no longer within the school’s physical custody (id. at 561). We reinforced the limited spatial and temporal nature of this duty by referring disparagingly to those “few instances” where other states “imposed liability for injuries occurring at a point distant from the bus stop” as “judicial ‘legislation’ ” unless based on a contractual obligation (id. at 562 [emphasis added]).

The principles established in Pratt may be read to suggest that a school is equally liable for injuries to a child within the area of embarkation or transition created when a school bus stops to pick up passengers and engages its red flashing lights and stop sign to halt motorists. We need not address this issue, though, because A. walked onto the highway and was injured while the bus was still moving in traffic. She was therefore never within the District’s physical custody, or any time- and space-limited area of implied custody and control that may arise once a bus stops and passengers begin to board. Thus, her injuries did not “occur[ ] during the act of busing itself, broadly construed” (id. at 561).

Creating a Hazardous Setting

Citing Ernest, plaintiff argues that the District is liable for A.’s injuries because it “placed” her in a foreseeably hazardous setting of its own making. Plaintiff points to various purportedly negligent actions or inactions on the part of District employees (e.g., the transportation supervisor tried but failed to reach her by telephone on March 12th to let her know that a different bus would be picking A. up the next day). She again highlights, though, that the bus driver missed A.’s designated bus stop and then turned around down the road and traveled back toward the stop thereby, the argument goes, placing A. in a setting that was foreseeably hazardous because these actions “confused” her into attempting to cross Route 5 on her own.

Even if the bus driver was negligent, as plaintiff alleges, negligence does not create duty, and plaintiffs reliance on Ernest to establish otherwise is misplaced. Critically, in Ernest the child was in the school’s physical custody when he was released “without further supervision” into an arguably hazardous setting. In other words, the school was in a position to determine the timing, place and conditions for sending the child home, and the school was under a duty to release the child from its physical custody “in a safe and anticipated manner” (Ernest, 93 NY2d at 672). We emphasized this point further in our discussion of McDonald (id. [stating that “McDonald stands for the proposition that a school district’s duty of care requires continued exercise of control and supervision in the event that release of the child poses a foreseeable risk of harm” (emphases added)]). As we recently put it in Stephenson v City of New York (19 NY3d 1031, 1034 [2012]), Ernest marks an exception to the general rule that a school’s duty of care does not extend beyond school premises, and is limited to “injury that occurred . . . shortly [after school hours] upon the student’s departure from the school” (emphasis added).

Here, by contrast, A. was not injured while going home from school; indeed, she was never in the District’s physical custody on March 13th, so the District was never in a position to “place” or release her into a hazardous setting at any time. Instead, she was in plaintiffs custody while she waited near the dumpster for the school bus. By setting specific “guidelines,” “boundaries” and rules designed to keep A. away from busy Route 5 when she was outside by herself, plaintiff implicitly acknowledged her responsibility for A.’s safety during those times.

Signaling

Plaintiff also seeks to impose a duty on the District on the basis of Appellate Division case law broadly holding that a motorist who signals a pedestrian to cross a street risks liability if the pedestrian is hit by another vehicle (see e.g. Riley, 15 AD2d at 305 [the defendant undertook an “affirmative act of waving her hand to direct the discharged passenger”]; Robbins v New York City Tr. Auth., 105 AD2d 616 [1st Dept 1984] [bus driver waved passenger to cross the street in front of the bus]; Yau v New York City Tr. Auth., 10 AD3d 654 [2d Dept 2004] [same]). All of these cases entail some intentional hand motion or gesture directed by the motorist at the pedestrian. Having thereby assumed a duty to guide the pedestrian to safety, the motorist must exercise reasonable care in doing so.

Here, though, neither the bus driver nor the monitor waved at or signaled A. as the bus missed her designated bus stop, traveling west; after turning around to travel east, they did not even see her before the accident. In short, they made no gestures at all, much less any gesture that a jury might conclude intentionally summoned A. to cross the highway. Consequently, plaintiff proposes that the “act of turning around the bus and coming toward [A.] was the functional equivalent of the hand signal given in Riley”; and “[t]he fact that the signal was by the bus, rather than by a hand, was no less communicative . . . , given [A.’s] age and mental capacity.” We find no basis in the case law for this novel theory. In any event, whatever A. may have thought when she saw the bus turn around, there is no reason to suppose from this record that the bus driver intended by driving east to signal A. to leave the safety of her designated bus stop and cross Route 5.

Special Duty

An agency of government may be liable for the negligent performance of a governmental function when there exists a special duty to the injured person, in contrast to a general duty owed to the public (see McLean v City of New York, 12 NY3d 194 [2009]). Plaintiff claims that A. is owed such a special duty by the District as a result of a special relationship created by the IEP; specifically, the “special busing services” afforded A. in the IEP.

But the IEP only directed the District to transport A. to and from school even though she lived within walking distance. In short, the District undertook in the IEP to provide the same busing for A. required of it for all children in “grades kindergarten through eight who live more than two miles from the school which they legally attend” (Education Law § 3635 [1] [a]), although A. was furnished portal-to-portal busing (see id., § 3635 [1] [d]). Notably, the IEP did not call for an aide or escort to wait with A. at her designated bus stop (see US Department of Education, Q and A: Questions and Answers on Transportation [Nov. 2009], http://idea.ed.gOv/explore/view/p/,root,dynamic,QuCorner,12, [noting that “(f)or students who may need assistance with ‘going’ to the bus stop or ‘waiting’ at the bus stop independently, adding a bus stop monitor can be considered” by the child’s IDEA Team]). Plaintiff suggests that busing a special needs child requires extra care, and therefore imposes additional transportation-related obligations on the District. But this argument is belied by the IEP itself, which did not specify any “special busing services” and required only regular bus transportation.

Limiting or Modifying Pratt and Ernest

Finally, plaintiff asks us to limit or modify Pratt and Ernest if we disagree with her position (as we do) that these cases provide a basis to impose liability on the District for A.’s injuries without any “additional exception or extension.” Basically, she urges that because of the “extreme circumstances” here, custody should not be the litmus test for duty. We have, however, repeatedly endorsed the efficacy and fairness of defining a school’s common-law duty to supervise or transport students in terms of physical custody.

The concept of in loco parentis is the fountainhead of the duty of care owed by a school to its students (see Mirand v City of New York, 84 NY2d 44, 49 [1994] [“(t)he duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians”]). In Pratt and Ernest we identified limited situations where a school might be liable in the absence of physical custody of an injured child. But in the circumstances described, the school still exercised control over the time, place and conditions of a child’s release from its physical custody to the protection of a parent or guardian. Here, A. never left plaintiffs custody and control on the morning of March 13th, and plaintiff trusted A. to wait at her designated bus stop independently. Because the accident did not happen while A. was within the District’s custody and control, the District is not liable for A.’s injuries.

Accordingly, the order, insofar as appealed from, should be reversed, with costs; defendant School District’s motion for summary judgment dismissing the complaint and cross claims against it granted; and the certified question answered in the negative.

Smith, J.

(dissenting).I would hold that on these facts the school district owed plaintiff’s daughter a duty of reasonable care, and that there is a triable issue as to whether her injury was proximately caused by a breach of that duty.

I

A school’s duty to its students arises because the school “in assuming physical custody and control over its students, effectively takes the place of parents and guardians” (Mirand v City of New York, 84 NY2d 44, 49 [1994]). In Pratt v Robinson (39 NY2d 554, 560 [1976]), we explained that when the school district’s custody of a child “ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases.” Cases in which school buses are picking up or discharging children are at the borderline between the school’s custody and the parents’ control, and it can be difficult in such cases to decide when the school district’s duty of care begins or ends.

I find two school-bus cases especially relevant here, Pratt and one of the decisions it relies on, McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, Seneca County (179 Misc 333 [Sup Ct, Seneca County 1941], affd 264 App Div 943 [4th Dept 1942], affd 289 NY 800 [1943]). In McDonald, a child was injured while crossing the street immediately after getting off her school bus. The bus driver, in compliance with a school district rule, had waited at the stop after letting the children off, allowing them to cross in front of the bus. The driver saw, but failed to warn the child about, the car that hit her. A jury returned a verdict against the school district, and the trial judge, Justice Van Voorhis (later a Judge of this Court), denied a motion for a new trial. He said that “[t]he presence of the bus necessarily created some hazard,” because it obstructed the view of children and drivers, and he found evidence to support a finding that the school district “assumed a duty to protect [the child] against the special danger which it had created by its own rule” (id. at 336). The Appellate Division and this Court affirmed without opinion.

In Pratt, a child was dropped off by a school bus, walked three blocks toward her home, and then was hit by a truck while crossing a street. The school district was sued on the theory that it was negligent for failing to locate its bus stop at a place nearer to the child’s home. We held that the school district owed the child no duty, because the child had left the school district’s custody, and her parents could have resumed control. We distinguished McDonald as a case in which “the injury occurred during the act of busing itself, broadly construed,” and referred to Justice Van Voorhis’s observation that “when children must cross the street where the bus stops, the bus itself acts as an obstacle to their clear view of oncoming traffic” (id. at 561). We expressed a similar view of McDonald in Ernest v Red Cr. Cent. School Dist. (93 NY2d 664, 671 [1999]), where we summarized it as holding that

“although a school district’s duty of care toward a student generally ends when it relinquishes custody of the student, the duty continues when the student is released into a potentially hazardous situation, particularly when the hazard is partly of the school district’s own making.”

This case involves a child being picked up, not dropped off, by a school bus, but that distinction seems to me of little significance. I would hold that the case is within the rule established by McDonald and restated in Pratt and Ernest: A school district’s duty to use due care exists where an injury occurs during “the act of busing itself, broadly construed” and where the child is exposed to a hazard “partly of the school district’s own making.” Here, the school district’s bus had gone to the child’s house to pick her up, had mistakenly driven past and was returning to complete the pick up. This was the act of busing, broadly construed. And the hazard here was, accepting the facts as plaintiff claims them to be, of the school district’s own making. Plaintiffs daughter went into the street in direct response to the bus driver’s allegedly negligent maneuver. Imagine a case like this one, except with stronger proof of the bus driver’s fault: suppose for example, that the driver had negligently stopped the bus across the street from the child’s house, causing her to think she had to cross. In such a case, the school district surely should be liable for the resulting injury — and, on the duty issue, the hypothetical case is indistinguishable from this one.

The majority acknowledges that the logic of the school-bus drop-off cases might be extended to a pick-up case, but would find a duty, if at all, only where the child is “within the area of embarkation or transition” and only after the bus “stops to pick up passengers and engages its red flashing lights and stop sign to halt motorists” (majority op at 400). This limitation, for which the majority offers no rationale, seems wholly arbitrary to me. What logic justifies excluding a case like this one, where, because of the driver’s negligence, the bus failed “to stop to pick up a passenger” and then, according to plaintiff’s claim, made an ill-judged turn that lured the child out of “the area of embarkation and transition”? I think our precedents, fairly read, compel the conclusion that a duty existed here.

II

For me, the issue of whether the child’s injuries were proximately caused by a breach of the school district’s duty of care is more troublesome than the issue of whether there was such a duty. I do not find this a strong case against the school district. Indeed, I wonder whether plaintiff might have had more success on the duty issue if she had a stronger case on negligence and proximate cause. But I conclude that plaintiff has presented enough evidence on those issues to get to a jury.

Plaintiffs theory is, in essence, that the school district should have told its driver that plaintiffs daughter was a special needs child; that the driver, after he missed his stop, should either have taken her special needs into account or called in for instructions on what to do; and that the driver or his supervisor, knowing that the child’s mental disability could impair her judgment, should have foreseen that the returning bus would lead her to put herself in danger. This theory, while debatable, is not plainly wrong. It was endorsed by plaintiffs expert witness, a specialist in the transportation of students and of passengers with special needs, and it found further support in the testimony of the school district’s transportation supervisor. The supervisor testified that, had he known that the child “had some issues with her capabilities to understand what to do and not to do,” and had he been asked by the bus driver whether to turn the bus around, he would not have advised him to do so, because the turn could create confusion and danger. He would, he testified, have told the driver to go on his way and sent another bus; there was evidence that another bus was in the area. A jury could find that what the supervisor said he would have done is what due care required, and that the failure to exercise due care proximately caused the child’s injuries. I would therefore affirm the order of the Appellate Division.

Judges Graffeo, Rivera and Abdus-Salaam concur with Judge Read; Judge Smith dissents in an opinion in which Chief Judge Lippman and Judge Pigott concur.

Order, insofar as appealed from, reversed, with costs, defendant Jordan-Elbridge Central School District’s motion for summary judgment dismissing the complaint and cross claims against it granted, and certified question answered in the negative.

      . As explained by the United States Court of Appeals for the Second Circuit, under the Individuals with Disabilities Education Act, or IDEA,
      “states receiving federal funds are required to provide all children with disabilities a free appropriate public education. To meet these requirements, a school district’s program must provide special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits. Such services must be administered according to an IER which school districts must implement annually” (Gagliardo v Arlington Cent. School Dist., 489 F3d 105, 107 [2d Cir 2007] [internal quotation marks and citations omitted]).

      . Daylight Savings Time started on March 9th in 2008; sunrise in Syracuse, New York on March 13, 2008 was at 7:19 a.m. (see http://www.timeanddate.com/worldclock/astronomy.html?n=777&month=3&year=2008&obj=sun&afl=11&day=1).

      . As observed soon after the accident by the bus driver, the monitor and the transportation supervisor, who arrived at the scene after having been radioed by the driver, only the windshield directly in front of the steering wheel had been scraped free of frost. The Collision Report indicated that the air temperature at the accident location measured approximately 12 degrees Fahrenheit at 9:19 a.m.

      . The experts focused on whether the bus driver created confusion and an unreasonably hazardous situation when he turned around within A.’s sight rather than circling to pick her up, or, alternatively, continuing on while notifying the bus dispatcher of the missed stop so that another bus might be sent to take her to school that day.

      . The sections cited in the bill of particulars were Vehicle and Traffic Law §§ 509-b (“Qualifications of bus drivers”), 1101 (“Required obedience to traffic laws”), 1146 (“Drivers to exercise due care”), 1180 (“Basic rule and maximum [speed] limits”) and 1174 (b) (governing the obligations of school bus drivers when receiving or discharging passengers).

      . Section 1174 (b) has been amended since we decided Pratt to require, additionally, that the bus driver keep the school bus halted until the passengers are at least 15 feet from the bus and off the road or on a sidewalk, whether the passengers cross a public highway or discharge to the same side of the road (see L 1988, ch 529); and to clarify this provision’s application to streets and roads in addition to public highways (see L 1990, ch 597).

      . In both Shannon (133 Cal App 124, 23 P2d 769 [1933]) and Gazaway (61 Ga App 3, 5 SE2d 391 [1939]), the children were struck and seriously injured by an automobile as they crossed to the opposite side of the road after getting off the bus. In Shannon, the bus driver was allegedly negligent for stopping where he did, parking at the roadside in a manner that violated state law and permitting the child to leave the bus without warning him of the danger of a rapidly approaching car. The Gazaway court concluded that the bus driver had a “duty ... to discharge a passenger at a place of safety, and where a carrier deposits him at a place which it knows will reasonably expose him to unusual and unnecessary peril it may he held liable for a proximately resulting injury” (61 Ga App at 10, 5 SE2d at 396).

      . The dissent asserts that we “offer[ ] no rationale” for this possible limitation (dissenting op at 406). But if the school remains responsible for the safety of a child who has disembarked a school bus only during the time and area of the child’s transition from the school’s actual custody to the parent’s actual or potential custody, as we have held, then, logically, the parent is responsible for the child’s safety until the child gets on the bus or, arguably, at least reaches this transition area when attempting to board. By contrast, the way in which the dissent interprets the phrase “the act of busing itself, broadly construed” is entirely open-ended. While I suspect that the dissenters would agree that a school district does not have a duty to warn or protect a child against all hazards that might arise during “the act of busing itself, broadly construed,” they offer no limiting principle.