(dissenting). The court is holding that a prima facie case of negligence is made out when an elementary school teacher leaves the class for a period, variously estimated as 20 minutes to one-half hour, for official purposes, without leaving another in physical charge, and one of the students assaults another. This goes much further than any of the cases, or the principles upon which they rest. Moreover, this defies the ordinary parental or school standards which apply to children in the teen-age range. Not to be confused are the situations where youngsters are engaged (while at school) in play, recreation, or assembly, under circumstances where high-spirited physical activity and physical interchanges among them are likely or are intended to occur (e.g., Lopes v. City of New York, 4 A D 2d 48, affd. 4 N Y 2d 738; Rivera v. Board of Educ., 11 A D 2d 7; cf. De Marco v. City of Albany, 17 A D 2d 250).
The Be Marco case, although it involved a playground in a public park, turns on the correct principles involved. There teen-age boys inflicted injury upon a little girl who was using a swing. Teen-agers had been responsible for acts of rowdyism, often interfering with the use of the swings. The court, in discussing the significant cases in the area, stated as follows (pp. 252-253):
“ The present case does not present a criminal situation but the jury could have found there was a dangerous situation if adequate supervision was not afforded and that the resulting accident was foreseeable.
“ The court stated in Lopes v. City of New York (4 A D 2d 48, 51, affd. 4 N Y 2d 738) that ‘ The duty “ to protect children of tender years and experience, at least from its own negligence ” rested upon the respondent (Van Dyke v. City of Utica, 203 App. Div. 26, 29), particularly when charged with knowledge, to be derived from its own departmental regulation as in the case at bar, that some sport conducted on its playgrounds might cause injury (Lane v. City of Buffalo, 232 App. Div. 334).’
‘ ‘ In the instant case, the jury could find knowledge of the danger presented by teen-age children at this particular swing area, and that the supervisor had ordered constant supervision of the area.
“ The case of Ohman v. Board of Educ. of City of N. Y. (300 N. Y. 306) is not authority for holding that every time a third person is involved there can be no liability on the part of the governmental subdivisions. Bather, the Ohman case, stands for the proposition that had the teacher been there, such a spontaneous act could not have been prevented. The point in the *233instant case is that proper supervision of the area would have resulted in the boisterous teen-agers either being expelled from the area or made to simply sit in the swings. In other words, the jury could find that proper supervision would have resulted in no injury.” (Emphasis in original.)
If there were any circumstances in connection with a classroom or its children, as, for instance, any history of boisterousness or rowdyism, which would make foreseeable that personal hazard would arise if the teacher left the room a ease would be made out. In this case there is none of this.
The incident in this case arose when a girl student had a quarrel with a boy student. She suddenly went to the blackboard, took the pointer and, in casting it, injured the infant plaintiff. All of this occurred within 10 minutes, after the teacher had left the room.
The class consisted of mentally retarded children but the record makes unequivocal that these were not children who were mentally disturbed. So far as the record is concerned these were orderly children who behaved like other children of their own age, ranging from 14% to 16 years. Their deficiency was intellectual and not emotional. The teacher testified that he had handled such special classes over a period of 11 years and that when he left the classroom for any official purposes he notified the teacher in the adjoining room. He admitted that sometimes upon returning to the class he would find bits of paper and chalk around the floor but he emphasized that nothing more serious had ever occurred.
On this record, therefore, to permit a jury to fix liability without other evidence to indicate a likelihood of serious disorder or any personal hazard arising if the teacher left the room unattended is not justified. While teen-age school children are capable of free spirits, they are not hellions who require close custody on pain of disaster to one of them. Typically, in cases where recovery has been allowed for classroom incidents, or near-classroom incidents, there has been evidence bringing home to the teacher or to the school board that conditions existed which would produce such disorder or hazard (e.g., Aronoff v. Board of Educ., 13 A D 2d 679, affd. 10 N Y 2d 828; Wiener v. Board of Educ., 277 App. Div. 934; see Bertola v. Board of Educ., 1 A D 2d 973; cf. Peterson v. City of N. Y., 267 N. Y. 204; Restatement, Torts, § 320, especially comment d.).
Accordingly, I dissent and vote to affirm the judgment dismissing the complaint.
*234Eager and Bastow, JJ., concur with McNally, J.; Babin, J., concurs in result; Breitel, J. P., dissents in opinion.
Judgment dismissing the complaint reversed, on the law and on the facts, and a new trial directed, with costs to abide the event.