Lack of Supervision

Recently the New York City Board of Education was sued when a student was injured in a fight with another student. The injured student claimed that the Board of Education failed to supervise the student who instigated the assault. However, in Espino v. New York City Bd. of Education, the city's board of education established its prima facie entitlement to judgment as a matter of law in a personal injury action brought by a 17-year- old student who was injured during a fight in a school hallway. The summary judgment evidence demonstrated that the supervision provided for students of the plaintiff's age was sufficient, that the attack on the plaintiff was sudden and spontaneous and could not have been prevented by more supervision, and that the board had no prior notice of problems between the plaintiff and his assailants.

Patient Injured by Home Health Care Aide

An elderly, quadriplegic man, in Garden City South was injured when his home health care aide assaulted him. The aide is accused of mistreating the patient, who uses a wheelchair and requires round-the-clock care, while employed as an aide by Ameriplan, a health care agency. The aide became irate while taking care of the victim, verbally harassing him, and then striking him with a fist upon his face causing severe swelling, pain and bruising. Afterwards, the aide locked the 68-year-old man in a room, removed the telephone, and left the residence for two hours without providing the victim with food, water, medication or care. The aide was criminally charged with endangering the welfare of an elderly person, unlawful imprisonment and assault. Not only could the aide be held civilly liable for the injuries sustained by the victim, so could Ameriplan if they knew, or should have known, that the aide was prone to violence. http://www.foleygriffin.com/

Lawsuit Filed on Behalf of Estate of Teenager

A Harborfields High School senior drowned in shallow water while he practiced holding his breath at the YMCA of Long Island's Huntington facility. Two lifeguards were on duty when the accident happened, as well as an aquatics coordinator. A lawsuit has since been commenced by the student's estate against the YMCA and some of its employees for "reckless, careless and negligent . . . life guarding and supervision of the 4-foot deep pool." The lawsuit also alleges the YMCA and their employees were "reckless, careless, and negligent in the ownership, operation, management, maintenance, control, life guarding and supervision of the subject premises."

The family believes that the lifeguards failed to stop the boy from a life-threatening activity and, when he was in distress, were inadequately prepared to respond in a timely and proper manner. In our opinion, the estate will have an uphill battle being successful on this case. Many times, courts will reject these claims before the family has a chance to present their case to a jury, based upon the fact that the injured party, or in this case this case, the decedent, "assumed the risk" of injury or death.

Student Assault - Brooklyn

In the case of S.K. v. City of New York, the plaintiff SK was a 7th grader from Brooklyn who was injured during a fight with a fellow student, LC, at the end of gym class. LC assaulted SK and struck him the head. This caused SK to have a hemorrhage that necessitated approximately ten brain surgeries. There was evidence that the Board of Education of the City of New York was aware that SK had previously and repeatedly been harassed and assaulted by fellow students, including LC. There was also evidence that the Board refused to transfer SK to a safer school after repeated requests by his father. At the time of the assault, LC initially cursed at SK and then SK cursed back. LC threw the initial punch and SK hit LC back. The attorneys for the Board, who obviously forgot what it was like to be a 7th grader, argued that SK deliberately chose to continue the fight instead of retreating or seeking help from the gym teacher. They asked the judge to throw the case out of court. In response to this move, SK's father offered a detailed history of the complaints he made to the school along with four specific incidents where SK was attacked by other students in 1998. He stated he met with the principal about these incidents. He also wrote a letter wherein he detailed the incidents of harassment and physical assault and asked that his son be transferred. He detailed similar incidents throughout the year of 1999. The judge wisely refused to dismiss SK's case, stating that it was up to a jury to decide (1) if the Board should have provided closer supervision of SK or taken other action to protect him, (2) if SK was a voluntary participant in the fight with LC or was merely acting in self defense, (3) if the gym teacher provided adequate supervision of his students, (4) if SK's chronic problems with other students required closer supervision, (5) if the Board was on notice of such problems, and (6) if the Board breached its duty to adequately supervise SK. http://www.foleygriffin.com/

Assumption of Risk

The doctrine of Assumption of Risk is often used by the courts to dismiss lawsuits where the injured party had knowledge of the injury causing defect and an appreciation of the resulting risk. Nassau County Supreme Court Justice Thomas Feinman was faced with this issue recently in the case of Berman v. Rolling River Associates Ltd. On March 17, 2008, the judge denied the defendant camp's motion for summary judgment dismissing a child's lawsuit to recover for the injuries suffered at a gymnastics class when she fell and broke her elbow. The claim was that the 7-year-old stepped directly on an apparatus that rolled over causing her to lose her balance and fall. The child's parent argued that there were no instructors at the apparatus, while defendants argued they provided adequate supervision. Defendants argued assumption of the risk in that the child consented to engage in the activity, thus consented to the inherent risk. The judge disagreed, stating it could not be determined that this child, participating in a gymnastics class for the first time, appreciated the risks associated with the apparatus. It noted plaintiff did not appreciate the risk given her age and level of experience, thus the doctrine of assumption of risk did not provide a bar to recovery. www.foleygriffin.com