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