Ebook When Schools Fail To Protect Our Kids

WHEN SCHOOLS
FAIL TO PROTECT
OUR KIDS
A Parents Guide to School & Daycare Negligence Cases in New York
Jonathan M. Cooper, Esq.
WHEN SCHOOLS
FAIL TO PROTECT
OUR KIDS
A Parents Guide to School & Daycare Negligence Cases in New York
INCLUDING:
5 Ways to Protect Your Child Against Bullying;
7 Sure-Fire Ways to Ruin Your School Negligence Case; and,
When Play at Your Own Risk Wont Bar Your Childs Claim
Jonathan M. Cooper, Esq.
Copyright 2014 by Jonathan M. Cooper

All rights reserved. No part of this book may be used or reproduced in any
manner whatsoever without written permission of the author.
Printed in the United States of America.
ISBN: 978-1-63385-019-4
Designed and published by
Word Association Publishers
205 Fifth Avenue
Tarentum, Pennsylvania 15084
www.wordassociation.com
1.800.827.7903
CONTENTS
My Guarantee........................................................................................... 1
Not Every Mishap At School or Daycare Warrants a Lawsuit................... 1
Why I Wrote This Book.......................................................................... 2
Separating Truth from Fiction.................................................................. 4
The Truth................................................................................................. 5
The Infamous McDonalds Hot Coffee Case and Frivolous Lawsuits... 6
Is This Book for You?............................................................................... 9
This Book Is Not Legal Advice.............................................................. 10
How School Negligence Differs From Other Types of
Negligence Cases.................................................................................... 11
I.
SCHOOL & DAYCARE NEGLIGENCE........................14
In a New York School Negligence Case, Who Do You Sue?................. 14

How to Prove Your School Negligence Case......................................... 15
What Are Some Typical Examples of School Negligence Cases?........... 18
7 Sure-Fire Ways to Ruin Your School Negligence Case...................... 22
The Biggest (Avoidable) Mistake in a NY School Assault Case.............. 27
How to Prove Your New York Injury Case When You Dont
Know What Happened........................................................................... 29
How New York Schools Can, in Rare Cases, Be Held Liable
Even for Accidents That Occur Off School Grounds............................. 30
II. SPORTS/PLAYGROUND ACCIDENTS &
PLAY AT YOUR OWN RISK.........................................33
The Hardest Part of Proving a Playground Injury Case Under
New York Law....................................................................................... 33
When New York Schools Can Be Held Liable for Playground Safety.... 35
New York State Adopts CPSC Guidelines for
Playground Safety Surfacing................................................................... 36
NY State Takes Steps to Limit Traumatic Brain Injury (TBI)
to Students.............................................................................................. 38
Why Your Childs Assumption of the Risk May Not Bar
Her Injury Claim.................................................................................... 40
How Some Plaintiffs Have Circumvented the Assumption of
Risk Doctrine......................................................................................... 43
The Best Defense to a Negligent Supervision Claim in New York........ 50
III.
SCHOOL BULLYING/ASSAULTS.............................51
School Has No Duty to Notify Parents of Danger to Child,

Says NY Court....................................................................................... 61
Why This School Assault Case, Which Left Girl in a Coma,
Would Fail in NY................................................................................... 63
Bus Drivers Inaction to Stem Bullying Leads to Lawsuit....................... 64
A School Bullying Case Even Tort Reform Advocates
Would Endorse....................................................................................... 65
How One Students Texting Led to a Bizarre Claim
Against His School................................................................................. 66
NYs High Court Takes Extreme Stand in School Assault Case............ 68
After Bullied Student Finally Fights Back, High School
Responds by Expelling Him................................................................... 69
5 Ways to Protect Your Child From Being Bullied at School................. 70
Why Reporting Bullying at School is So Important.............................. 74
When a New York School Has a Duty to Report Abuse........................ 75
How a School Can Be Held Liable for the Bad Acts of its Employees.... 78
NY Appeals Court Dismisses Sexual Abuse Claim Against
School District........................................................................................ 79
If True, This is How You Prove a Negligent Hiring &
Retention Case in New York................................................................. 80
IV. HOW CAMP AND SCHOOL LIABILITY DIFFER
UNDER NEW YORK LAW................................................82
V. PRACTICAL CONSIDERATIONS/
CONCERNS IN SUING A MUNICIPALITY...................... 84
How a Municipality in New York Can Be Held Liable For Failing
to Protect You........................................................................................ 84
The Most Critical Mistake to Avoid When Suing a
New York Municipality......................................................................... 86
Why Wrongful Death Claims Allow for More Than ............................ 88
1 Year & 90 Days to Sue a New York Municipality............................... 88
Why Its So Important to Investigate Your Childs
Negligence Claim .................................................................................. 89
BEFORE You File Suit in New York.................................................... 89
How We Determine if We Are Going to Accept Your Case.................. 91
Having A Clear Understanding of the Roles that Your Attorney
and You Have in the Litigation Process is Critical to the Success of
Your Case............................................................................................... 92
The Legal Process in Accident Cases...................................................... 95
Why You Should Hire Us...................................................................... 96
Our Services........................................................................................... 97
WHEN SCHOOLS FAIL TO PROTECT OUR KIDS
MY GUARANTEE
Before I begin, let me be very clear about one thing:
I guarantee that the information I provide in this
book will prove extremely valuable if your child has
been injured as the result of school, daycare, or camp
negligence. No ifs, ands or buts about it. And no
small lawyer print either.
While were on the topic of blunt, cold truth,
consider this:
NOT EVERY MISHAP
AT SCHOOL OR DAYCARE
WARRANTS A LAWSUIT
In fact, the instances warranting legal action are few and

far between.
As you can readily glean from my bio at the end of
this book, I am a father of eight young children. And no,
just because Im a lawyer doesnt mean my children or
I are immune to the dangers that every child or parent
fears; in fact, more than one of my children has been bullied
(even assaulted) and injured at school.
And you know what? I didnt sue for any of those

incidents.
Why not? you ask.
Because not every instance of bullying or accidents at school
warrants a lawsuit.
Rather strange to hear that from a lawyer, isnt it?
Perhaps, but its the truth.
WHY I WROTE THIS BOOK

I wrote this book so you can have a basic understanding
about school and daycare negligence cases, which is a
small niche within the larger ambit of accident cases,
how your case will be evaluated by the school districts
or their insurers, and what questions you should ask an
attorney in order to assure you are getting an honest
assessment of your case. I wrote this book so that you can
have good and straightforward information to review and study
about school negligence cases in the comfort of your own home,
and on your own time.
I am also tired of people being misled and disillusioned
by attorney ads that all but promise people untold
fortunes of money, and that the client will nary have to
lift a finger, or even show the slightest interest, in their
own case.
Third, and quite frankly, this book saves me a lot

of time. I cant and dont accept every case that
comes my way; for a myriad of reasons, I decline over
90% of the cases that are referred to my office. And,
as you might suspect, this weeding-out process takes
considerable time. Therefore, by answering a lot of the
most commonly asked questions in this book, I save an
inordinate amount of time both for the prospective
clients, and for me.
Most important, by writing this book, I get a chance
to talk to you about what you need to know about
school negligence claims so that you can make an
informed decision about what steps to take with your
childs case to make sure that you maximize your childs
recovery, assuming it is a legitimate case. Further, even
if I cant accept your case, I want you to be educated
about the process so you dont fall prey to the ploys of
the insurance companies or slick, ambulance-chasing
lawyers.
SEPARATING TRUTH
FROM FICTION
Perhaps the most often usedand misleading

information provided by attorneys in their advertising
is the dollar figures of the verdicts rendered in personal
injury cases theyve handled. If you look more closely at
the reports of these cases, you cant help but notice that,
generally speaking, precious little detail is given about
these cases; thus, it should come as no surprise to you
that the information that is selected for reporting in these
cases is cherry-picked to make it seem like people with
little or no injury were awarded hundreds of thousands,
or millions of dollars.1 These attorneys are hoping youll
believe that regardless of the facts of your case, they can
obtain untold fortunes of money for you.
Attorneys frequently employ another equally useless
tactic that doesnt withstand scrutiny: touting the
combined years of experience of the attorneys at the
firm. Seriously, what difference does it make that the
lawyers there have over 150 years worth of combined
experience? Is anyone there over 150 years old that it
1 For example, the fact that I have personally handled class action
products liability cases against multi-national companies with class
members in the thousands is not reason enough, in and of itself, to
hire me or my firm. Nor are my firms past results (which can be
viewed at my firms website), an intrinsically fair indication of what
results you could expect for your case.
would have any impact on your potential case? To

sharpen the question even further, Ive litigated cases
against firms that employ thousands of attorneys. Does it
have any bearing on your particular case that this firms
attorneys combined experience would long pre-date
this countrys legal system?
I thought not.
THE TRUTH
I am continually amazed by the sheer number of people
Ive come in contact with over the last seventeen years in
the realm of personal injury cases who were profoundly
disappointed when the insurance companies did not
voluntarily throw money at them just to settle their case
even when the accident was clearly someone elses fault.
These people are surprised that the insurance companies
were, and are, willing to fight to the bitter end before
paying most claims.
In case you share this surprise, heres some cold,
hard truth: Insurance companies are in business to
make (and retain) money; they are not in business to
do whats right.
While were on the topic of truth-telling, lets address
the 800-lb. gorilla in the room.
THE INFAMOUS MCDONALDS

HOT COFFEE CASE AND
FRIVOLOUS LAWSUITS
I think this issue is so important that it must be met headon at the very beginning of any discussion about injury
claims. Manyif not mostpeople are uncomfortable
bringing an injury claim because they dont want to be
perceived as one of those people who is litigious, and
sues at the drop of a hat.
That is a perfectly normal sentiment; but that
doesnt mean the sentiment should carry the day in your
particular circumstance.
There are instances where either you or someone
in your family has been seriously damaged as the
direct result of someone elses negligence. And in those
instances, there is no reason that you should have to bear
the expense and burden of the fallout from that accident
alone; the negligent parties should also bear their fair
share of responsibility.
And to prove the point to you, lets discuss the
poster child for frivolous lawsuits, the now infamous
McDonalds hot coffee case. (After all, what honest
discussion of personal injury cases could be complete
without a discussion of this seminal case?)
Many of my colleagues and I have found that

prospective jurors love to cite as the paradigm of a judicial
system run amok that now-infamous McDonalds case
where a jury awarded a woman over $1 million for the
injuries she sustained when the coffee cup she put between
her legs caused her second and third-degree burns.
But are the McDonalds critics right?
While selecting juries, I have found that the same
prospective jurors who bring up the hot coffee case
usually concede that the results in that case would not
be outrageous had they known that McDonalds own
internal correspondence confirmed that they deliberately
made their coffee scalding hot and used inferior quality
paper cups with the tacit knowledge that patrons may
get burned when the paper coffee cups collapsed on their
own accord (which is precisely what happened in that
case) because then McDonalds wouldnt have to fill up
the cups with as much coffee. Strange (and frightening)
as it may sound, McDonalds included these burn victims
as one of its costs of doing business, and determined it
was more profitable to make their coffee hotter and
serve less coffee in their inferior quality cups.
There are many people who feel entitled to get rich
quick for every perceived slight or injustice done to
them. In their defense, many of the lawyer ads Ive seen
make it seem just that easy.
Without doubt, these ridiculous ads have fueled
the insurance industry and doctors groups success
in painting trial lawyers as the villains behind rising

insurance costs.
I also loathe rising insurance costs. At last count, I
have eight (8) children that I have to care and provide
for, and these costs affect me greatly. But that doesnt
mean we should accept as true the insurance companies
mantra scapegoating the lawyers for this particular
societal evil. The reason is straightforward:
Its simply untrue.
Please, dont take my word for it; decide for yourself
after reading Harvard Universitys peer-reviewed study
that was published in the May, 2006 edition of the New
England Journal of Medicine.2 Lead author, and associate
professor of law and public health at the Harvard School
of Public Health, David Studdert, summarized studys
conclusions as follows:
Some critics have suggested that the
malpractice system is inundated with
groundless lawsuits, and that whether a
plaintiff recovers money is like a random
lottery, virtually unrelated to whether
the claim has merit.
2 The press release announcing the publication of this study can

be found at http://archive.sph.harvard.edu/press-releases/2006releases/press05102006.html.
These findings cast doubt on that view

by showing that most malpractice claims
involve medical error and serious injury,
and that claims with merit are far more
likely to be paid than claims without
merit.
IS THIS BOOK FOR YOU?

If you think you should have truckloads of money
thrown at your feet because your child sprained his
thumb, I cant and wont help you. This book is for
people willing to understand that the world of school
negligence cases is very difficult, and you are prepared to
learn how to improve your chances at maximizing your
childs chances for recovery if you have a legitimate case.
Indeed, even if you have a legitimate case, I cannot
help you if your childs case is too small. Simply put, the
way the laws (particularly in school accident cases) are
currently written, there is virtually no room for small
cases; they are just not economically viable.
But if your child was seriously injured, and the
accident was someone elses fault, I can help.
Since 1997, I have worked in the personal injury
field. I spent the first three years of my career exclusively
defending the insurance industry and governmental

defendants. Since that time, I have used the knowledge
I gained from that experience to represent seriously
injured individuals.
I have lectured to other attorneys about civil practice
and litigation in New York, and Im proud to say that I
get well over a third of my clients from other attorneys
who used to be my adversaries, and from former satisfied
clients. My firms website (www.JonathanCooperLaw.
com) has a lot of useful information and links on a
variety of topics pertaining to New York accident cases,
and one area of practice specifically dedicated to school
negligence cases. I update this website regularly to
include the most recent developments in this area of law.
THIS BOOK IS NOT

LEGAL ADVICE
That being said, it is important that you understand the

limitations of this book. Although I believe this book
is extremely valuable as a resource to identify common
pitfalls that plague claimants cases, every case is unique,
and presents its own particular facts and legal issues.
Consequently, please do not construe anything in this
book to be legal advice about your particular case until
10
we have mutually agreed in writing that I have accepted

your case.
Now that weve gotten the legalese out of the way,
lets get right to it.
HOW SCHOOL NEGLIGENCE

DIFFERS FROM
OTHER TYPES OF
NEGLIGENCE CASES
As you might suspect, school or daycare negligence is
a subcategory of general negligence cases. Therefore,
and not surprisingly, many of the guiding principles in
school negligence cases are the same as those pertaining
to garden-variety negligence cases. On the other hand,
it should also come as no surprise that there are some
nuances particular to this niche of cases.
For example, school liability is based on the same
overall type of proof as you would need in any other
type of accident case, i.e., you will you need to show that
the defendants were negligent, i.e., at fault, for causing
your injury, and that the defendants negligence was a
substantial factor in causing your injuries.
Naturally, the nature of the proof necessary to
establish a defendants negligence can and does vary
11
widely depending on the type of accident involved.

For example, in a sidewalk defect case, you will need
to show either that the defendants affirmatively created
the defect, or that they knew or should have known
about the defect long enough before the accident for the
defendants to repair it, yet failed to do so. Similarly, in a
car accident case, you will be required to show that the
defendants failed to obey the rules of the road and/or that
they failed to take reasonable measures that would likely
have allowed everyone involved to avoid the accident.
(Proving a defective products case, however, is far
more complicated because New Yorks courts require
plaintiffs to demonstrate that the product fails a sevenfactor test, which include weighing the products utility
to the public as a whole; the likelihood that the product
will cause injury; the availability (and feasibility) of a
safer alternative design; and, whether the products
potential danger should have been apparent to that
particular plaintiff.)3
One of the common denominators among personal
injury cases (and particularly in the defective products
and professional malpractice realm), is that you will often
need expert testimony to prove that the defendants were
negligent. And, in nearly all accident cases, you will need
expert testimony to establish the nature and severity of
your injuries. This holds true in school negligence cases
as well.
3 For additional information on this topic, see our eBook, Why
Are There So Few Successful Defective Products Lawsuits?
12
On the other hand, there are some factors endemic

to school negligence cases that are not typically present
in other accident cases, chief among them that the schools
have a heightened level of responsibility to supervise our children.
As a corollary to that rule, one hot-button issue
that is making the news with (unfortunately) increasing
frequency is the topic of bullying, and the schools
responsibility (or the lack thereof ) for stemming the
bullying before it leads to assaults or tragedy.
To ease the burden on you, the reader, I decided
to break down this book by topic. The first part deals
with the rules pertaining to school negligence generally.
Branching out, we get more granular with specific
types of school liability, ranging from playground
accidents to assaults and bullying, and conclude with
practical concerns that apply to suing public schools
and municipalities (who are typically responsible for
overseeing the schools).
13
I. SCHOOL & DAYCARE NEGLIGENCE

IN A NEW YORK SCHOOL
NEGLIGENCE CASE,
WHO DO YOU SUE?
As noted below, the most critical mistake to avoid when suing

a New York municipality is failing to file in a timely fashion the
Notice of Claim, which must, as a general rule, be done
within 90 days of the incident or occurrence. There is
a second, and equally, important rule when suing for
school negligence or negligent supervision against a
New York municipality: identifying the specific entities
that need to be sued.
Take New York City, for example. Under NYC
Charter 521(a), the property on which the public schools
sit is owned by New York City, however those premises
remain under the Department of Education (DOE)s
control and care for purposes of public education,
recreation, and other public uses. Thus, if you only sue
New York City (and not the DOE) for school negligence
or negligent supervision, there is a chance that a Court
will dismiss your case. While there are some courts, like
in Kamara v. The City of New York, that have accepted as
valid a school negligence claim that was brought against
New York City alone (rather than separately naming the
14
Department of Education), there are also some cases that

have held differently on the subject.
And, at the risk of stating the obvious, the specific
entities responsible for particular schools and their
grounds varies widely across New York State.
One thing is clear: you really dont want to run the
risk of a court holding that your claim is barred for failing
to name all of the right entities.
HOW TO PROVE YOUR SCHOOL

NEGLIGENCE CASE
Back in 2009, at the conclusion of a trial, a jury found

that a 12 year-olds school was responsible to pay over
$280,000 as compensatory damages for the serious
personal injuries that student sustained when a classmate
assaulted and beat him to the point where he lost
consciousness.
The question begs to be asked: why should the school be
held responsible for an assault - which is technically a criminal
act when it was perpetrated by someone else?
The answer to this question requires a basic
understanding of where a schools responsibility for its
students safety begins and ends. On the one hand, New
15
Yorks courts have long held that during school hours

and while on school premises (the schools are, generally
speaking, not liable in negligence for acts that occurred
during non-school hours and off school grounds), the
school stands in the shoes of its students actual parents
(or in legal terms, is deemed the de facto guardian or
parent of the child), and is therefore responsible to
protect its students from foreseeable risks or harm; on
the other hand, the courts have also recognized that the
schools cannot be held legally responsible for a students
personal injuries that resulted from a spontaneous,
unforeseeable act.
Therefore, it should come as no surprise that many
of the personal injury lawsuits that are brought against
schools ultimately turn on one issue:
Was the manner in which the child was injured foreseeable to
the school?
Stated differently, would this incident likely have
been prevented had the school (via its employees) acted
reasonably under the circumstances?
As a practical matter, it is often difficult to prove
that the incident was foreseeable. This particular case is
a prime example, as the school argued that they could
not be held liable for failing to prevent a fight of which
they had absolutely no warning. Indeed, the paradigm
exemplifying this concept is where one student pushes
another off of a swing in a playground, as a result of
16
which the latter child falls to the ground and is injured.

In that scenario, a school will almost certainly not be
held liable for the incident.
Plaintiffs have typically tried to overcome these
hurdles in one of two (2) ways:
(1) Showing that the school was tacitly aware, or had
actual notice, of the threats that the offending
student made against the injured student before
the incident, yet did not undertake sufficient
affirmative actions to prevent the incident from
occurring; or,
(2) Demonstrating that the school had clearly
inadequate supervision at the time and place,
and that with adequate supervision, the incident
likely would not have occurred (constructive
notice). Applying that principle, some plaintiffs
have successfully demonstrated that the school
had constructive notice of the danger where the
offending student was threatening or chasing the
injured student for several minutes before the
incident finally happened.
17
WHAT ARE SOME TYPICAL

EXAMPLES OF SCHOOL
NEGLIGENCE CASES?
A) Looking for the Paradigm of a School
Negligence Case? Here it is.

In a recently reported case, the parents of a child
settled their claim against a day care center who
was charged with the responsibility of watching
over their 5 month-old for a total of $775,000.
While at first blush that seems like a rather steep
sum, consider this:
A worker at the day care center that was
carrying the 5 month-old dropped the infant on
his head onto a concrete floor, causing the baby to
sustain severe head injuries.

I imagine that even staunch tort reform advocates
shouldnt have a problem with that result.
B) School Accused of Negligence After Student
Drowns in Open Drain

Every once in a while I come across a story of
school negligence that is particularly egregious.
These stories, like the one that follows, tend to
make me take a step back and appreciate what a
wonderful country we live in.
Why? you ask.
18
Because these stories invariably did not occur

in the United States.
This particular case comes out of India, where a
4 year-old child was playing just outside his school
when he fell into an open drain, and was only
found hours later when his parents came looking
for him. (Apparently, school officials had no idea
this child was missing to begin with.)
For purposes of clarity, lets review some of the
more important ways this school would be deemed
negligent under New York law:
The school failed to properly operate
and maintain a large drain cover in their
playground where small children of 4 years
old were known to be, and were rightfully
playing;
The school failed to account for and monitor
the children in their charge, including this
poor 4 year-old child, at all times during
school hours;
The school failed to get timely and proper
help for this child once he was injured.

From the reporting on this story, it appears that an

investigation has commenced. Lets hope it leads to
positive changes to childrens safety in school.
19
C) Split Appeals Panel Dismisses Bronx School

Negligence Case

Perhaps its a bit strange to hear this coming from
a New York school negligence attorney, but here is
the unvarnished truth:

Just because an accident happens at school doesnt

automatically mean that the school is, or should be, held
responsible for the accident.

Rather, as weve pointed out before (see, e.g., How
to Prove Your School Negligence Claim Under
New York Law), the litmus test for a schools
liability for an accident is whether they knew, or
should have known, about a dangerous condition
on their grounds during school hours, yet failed to
take appropriate measures to remedy the condition.
In a split decision that was handed down in the
case of Hunter v. New York City Dept. of Education,
a majority of the appeals court reversed the Bronx
trial courts ruling denying the Citys motion
to dismiss the case, holding [T]he classmates
spontaneous act of stepping backwards from a
chalkboard and falling is an example of such a
thoughtless or careless act that could not have been
prevented by reasonable supervision.
There was a vigorous two-justice dissent,
however, which noted that one of the teachers had
warned the child by the chalkboard to be careful,
20
because she apparently recognized that a dangerous

condition existed beforehand.
From a purely legal/technical standpoint, I
understand the dissents view, and so long as any
reasonable juror could find in the plaintiff s favor,
the case should not be dismissed on papers. But
from a broader perspective, I have serious doubts
that a jury will agree with the plaintiff s claims,
and therefore, I think they would lose at trial. In
other words, defeating the motion to dismiss would
be a truly Pyrrhic victory, all of which leads to my
next point:

In my view, this case should never have been

brought.
D) Why This School Accident Case Wouldnt

Survive in New York

Sometimes, the particular jurisdiction for a case
doesnt really matter; the result will likely turn out
the same.
And the school negligence case of one teenager,
who slipped and fell on a puddle of water at her
school seems to fit this bill. Despite needing
corrective surgery for the ligament damage to
her knee - which all but destroyed her dreams
of joining an elite unit of the Army - an appeals
judge recently dismissed her school negligence
21
claim, finding that the school had taken reasonable

precautions to prevent the hallway from becoming
wet and dangerous during inclement weather, and
therefore, the school could not be held liable in
negligence for her injuries.
It is a near certainty that her negligence claim
would have suffered the same fate in New York
because under New York law, the school is only
held to the same standard of care as a reasonably
prudent parent under the same circumstances.
Applying that rule to these facts, this girl would have
been required to show that the school either knew,
or should have known about this dangerous wet
condition in the hallway, but that the school failed
to clean it up or otherwise remedy the condition in
a reasonable amount of time. Obviously, that is a
very difficult thing to prove.
7 SURE-FIRE WAYS TO RUIN
YOUR SCHOOL NEGLIGENCE CASE

Without a doubt, prevailing on a negligence claim against
a school in New York - even when the school clearly
failed to do a good job protecting our children while
in their care - is challenging. But that doesnt mean we
22
should unwittingly ruin an otherwise valid, righteous

case. With that in mind, heres a list setting forth seven
(7) of the most common ways that parents inadvertently
damage their childrens cases - and, just as importantly how to avoid those mistakes:
(1) Fudging the Facts There are few, if any,
more damaging things to a case than when a client
is not completely truthful with his/her attorney.
Harmful information to your case that you fail to
disclose to your own attorney at the initial client
interview, or even when preparing for deposition
or trial, has an uncanny knack of coming out at
deposition or trial, and at that point, there is often
little that your attorney can do to mitigate the
damage. For example, it is important that you
disclose to your attorney any prior or subsequent
injuries to the same areas of your body that you
are claiming were injured in this accident, because
the defendants will ultimately claim that this
prior or subsequent incident was responsible for
your injuries rather than the subject accident, and
your attorney must be prepared to deal with this
eventuality. Moreover, it is equally important that
you disclose to your attorney any negative thing
that could potentially have any bearing on your
case, such as a felony conviction, or witnesses (or
23
other evidence, such as documents, photographs or

a videotape) that may come in against you at trial.
(2) Failing to document prior complaints
regarding the same condition/issue - As set
forth above, one of the most difficult things needed
to establish a schools liability is that the school either
knew, or should have known about the dangerous
condition/circumstance/threat, yet failed to
address it appropriately in a timely manner. If you
know about a dangerous condition, make sure the
school receives written notice of it beforehand (needless
to say, doing so will often force the school to take
corrective action whereas they otherwise might
ignore it) which is truly a win-win situation:
either the school undertakes the reasonable and
necessary steps to make things safer, or it can be
held liable for failing to do so.
(3) Failing to document the defective conditions
near the time of the accident When presenting
a case before a judge or jury, it is important to bear in
mind the old maxim a picture is worth a thousand
words, because the only way for a third party to
truly appreciate how poorly a school maintained
its grounds is if they can visualize it. And its not
just pictures; sometimes its even measurements.
Often, in the aftermath of an accident, a school
24
(like any other entity) will rush to repair the

defective condition before someone else gets hurt
(or before anyone can garner evidence of the poor
maintenance job they did pre-accident). And if the
school did a poor job maintaining its equipment,
you can be equally sure that their records regarding
their equipment are lacking as well.
(4) Failing to document/photograph injuries The same holds true for demonstrating how badly
your child was hurt. Telling the jury about the
severity of the injuries isnt the same as showing
them. As a corollary to this rule, see the paragraph
below, The Biggest (Avoidable) Mistake in a New
York School Accident Case.
(5) Failing to get witness information - As in any
other garden-variety negligence case, gathering
the contact information for witnesses to the
occurrence shortly post-accident is critical because
people move away and memories fade. So, if its a
serious case, treat it that way: lock in the witnesses
identities, and memorialize their recollection of the
accident (preferably with an investigator) as soon
possible.
(6) Failing to get timely and appropriate medical
care Granted, this should certainly be done for
25
a child, whether or not you decide to sue; but you

should also be aware that failing to secure timely
and appropriate medical care for the child can also
impact negatively on a subsequent lawsuit, because
a jury will likely doubt the injuries were serious
if they didnt demand or warrant immediate
medical attention. Alternatively, it might lead a
jury to conclude that the injuries were caused by
something other than the schools negligence.
(7) Failing to File Timely Claim New Yorks
decisional law is replete with cases that were
relegated to the scrap heap by failing to follow this
critical procedural rule. Lets be perfectly clear: This
mistake may not only harm your childs case - it can
prove absolutely fatal to the claim. When dealing with
New Yorks public school system - whether inside
or outside New York City, there is a requirement
that claimants file a Notice of Claim setting forth
the central allegations to the case within 90 days of
the occurrence. While there are some extenuating
circumstances where this deadline can be extended,
the outside limit for doing so (even with court
approval) is generally one year and 90 days postaccident. (For additional information on this topic,
see below, The Most Critical Mistake to Avoid
When Suing a New York Municipality).
26
THE BIGGEST (AVOIDABLE) MISTAKE

IN A NY SCHOOL ASSAULT CASE
A decision by a New York County trial judge that just

came down on May 29, 2014 in a case involving an
assault that took place at a New York City school serves
as an important reminder aboutthe biggest and
perhaps most easily avoidable mistakethat can
mean the difference between a great case where a student
can recover for the damages he or she sustained due to
the schools failure to prevent the assault, and a case that
stands a strong chance of being dismissed.
By now, you should be wondering, What can possibly
make such a difference that it might prove decisive as to whether
my child wins or loses their case?
Technology has made the nature of potentially available
evidence markedly different over the last number of
years. In the school negligence context, this means that
the first place you should look is to find out if the
school has any security videotapes showing what
happened.
Heres the tricky part:
You have to move VERY quickly on this, because
schools will often tape over existing videotapes
unless a specific demand is made that they preserve
the video shortly after the occurrence.
27
Heres why the New York County trial courts

decision inRodriguez v. City of New York drives this
point home.
In that case, the school lost the videotape after a
demand had been made for it. And even though there
were other ways for the plaintiff to prove their school
assault case, the court still sanctioned the defendant, and
stated as follows:
The video is neither the only nor most
critical proof in plaintiff s case in chief,
although it may have assisted plaintiff in
proving the timing of the occurrence, and
to some extent, the supervision of students
during their departure from the school.
Therefore, an adverse inference charge to be
determined by the trial judge is appropriate
here (seeStrong v City of New York, supra at
24; Suazo v Linden Plaza Assoc., L.P., 102 AD3d
570 [1st Dept 2013];Gogos v Modells Sporting
Goods, Inc., 87 AD3d 248 [1st Dept 2011]).
In other words, by simply demanding the tape in a timely
way and despite being unable to actually get a copy of
the tape the plaintiffs were still able to secure an order
allowing the jury to infer that the videotape contained
information that was harmful to the Citys defense.
28
HOW TO PROVE YOUR NEW
YORK INJURY CASE WHEN YOU

DONT KNOW WHAT HAPPENED
A recent - and sad - story out of Alabama, where a young

child with cerebral palsy returned home crying in pain,
leading the childs mother to discover that her sons leg
had been broken during the school day, gives rise to the
following important question:
What, if anything, can you do if your child is injured
while at school or daycare, but no one witnesses how the
injury occurred? Is there any way that your child can
recover damages (including ongoing medical care that is
necessitated by - and resulting from - the injury)?
True, in most circumstances (at least under New
York law), nothing realistically can be done for this
child to be fairly compensated. One exception to this
general rule, however, is where the sole explanation
for the accident is the schools negligence (or, in legal
terms, res ipsa loquitur).
HOWEVER, New Yorks courts have laid down
three (3) strict prerequisites before they will apply this
doctrine:
(1) [T]he event must be of a kind which ordinarily
does not occur in the absence of someones
negligence;
29
(2) It must be caused by an agency or instrumentality

within the exclusive control of the defendant; and,
(3) It must not have been due to any voluntary action
or contribution on the part of the plaintiff.
As a practical matter, res ipsa loquitur is more readily
available in cases involving either very small or severely
disabled children because these children will usually
have no control or responsibility over any of the factors
leading to the accident.
A Final Note: The toughest criteria to meet, and the
most frequent battleground in these cases, is prerequisite
#1, which is proving that the accident is of a kind that
would not normally occur unless someone was negligent.
HOW NEW YORK SCHOOLS CAN, IN

RARE CASES, BE HELD LIABLE
EVEN FOR ACCIDENTS THAT
OCCUR OFF SCHOOL GROUNDS

Generally speaking, a school cannot be held liable in
negligence for injuries that occur to its students off school
grounds or outside school hours.
30
And the reason for this rule is logical; to hold otherwise

would potentially create almost endless liability for schools
and the municipalities that oversee them.
But there is a narrow - and important - exception
whereby a school may still be held liable for accidents
that occur outside the schools orbit of authority: [W]
hen the school releases a child without further supervision into
a foreseeably hazardous setting it had a hand in creating.
Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664, 717
N.E.2d 690, 695 N.Y.S.2d 531 (1999).
In Ernest, the nine-year-old infant-plaintiff was
dismissed from his second grade class at Cuyler
Elementary School, which was part of a larger school
district. Like the other students at his school, the plaintiff
had to cross the county highway where the school was
located highway in order to get home. But when the
plaintiff attempted to cross on that fateful day, he was hit
by a truck and severely injured.
In reversing the trial and appellate courts orders
dismissing the negligent supervision claims against the
school district predicated on the fact that the accident
occurred off of school grounds and after school hours,
the Court of Appeals held as follows:
MacDonald stands for the proposition that
a school districts duty of care requires
continued exercise of control and supervision
in the event that release of the child poses a
31
foreseeable risk of harm (see also, Bell v. Board

of Educ., 90 N.Y.2d 944, 665 N.Y.S.2d 42, 687
N.E.2d 1325 [school held liable for negligent
supervision off school property] ).
Pratt v. Robinson, 39 N.Y.2d 554, 384
N.Y.S.2d 749, 349 N.E.2d 849, relied upon
by the courts below, is distinguishable. The
plaintiff schoolchild in that case was hit by
a truck while she was walking across a street
on her way home several blocks away from the
[bus] stop (id., at 559, 384 N.Y.S.2d 749, 349
N.E.2d 849 [emphasis supplied] ). We held
that, [T]he children having been set down in
a safe spot, and nothing untoward having occurred
in the course of their disembarkation, * * * [the
school] bore no further duty to the child
(id., at 560, 384 N.Y.S.2d 749, 349 N.E.2d
849 [emphasis supplied]).
Contrastingly here, [the infant-plaintiff ] was
not released to a safe spot but to a foreseeably
hazardous setting partly of the School
Districts 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.
32
II. SPORTS/PLAYGROUND ACCIDENTS &

PLAY AT YOUR OWN RISK
THE HARDEST PART OF PROVING
A PLAYGROUND INJURY CASE
UNDER NEW YORK LAW
It is truly sad when a child that is injured on a playground;

after all, we want to encourage the children to engage
in healthy outdoor physical activities, but there are,
unfortunately, risks that are attendant to those activities,
and this can put a real damper on it.
There is no question that some accidents are
unavoidable. But it is equally true that many playground
injuries are prevented, or at least mitigated, by a school,
if the school acts reasonably and appropriately.
Leaving aside the issue of the safety of the equipment
involved (which is usually not the chief culprit in causing
a childs playground injury), the toughest part of these
cases is proving one thing (and this is where most
schoolyard injury cases fail):
That the injury wouldnt have occurred had the school
adequately supervised the students at the time of the accident.
Please; dont take my word for it.
33
Instead, consider the matter-of-fact language used

by one of New Yorks appellate courts in dismissing
the school negligence case of Troiani v. White Plains City
School District:
Here, the defendants established their prima
facie entitlement to judgment as a matter
of law dismissing the complaint. They
demonstrated that they provided adequate
supervision during recess and, in any event,
that the accident occurred in such a manner
that it could not reasonably have been
prevented by closer monitoring, thereby
negating any alleged lack of supervision as
the proximate cause of the infant plaintiff s
injuries (see Weinblatt v Eastchester Union Free
School Dist., 303 AD2d 581 [2003]; Berdecia
v City of New York, 289 AD2d 354 [2001];
Navarra v Lynbrook Pub. Schools, Lynbrook
Union Free School Dist., 289 AD2d 211 [2001];
Lopez v Freeport Union Free School Dist., 288
AD2d 355 [2001]).
Lets be perfectly clear: a plaintiff must clear a daunting
evidentiary hurdle to win a playground injury case.
34
WHEN NEW YORK SCHOOLS
CAN BE HELD LIABLE FOR

PLAYGROUND SAFETY
One of the best, and most important, parts of childhood is

the learning thats done out in the playground. Children
not only have fun and get valuable exercise, but they also
develop critical skills in terms of physical development,
and yes, leaving their comfort zone and taking some risk.
But not ALL risks.
True, the educational value of the playground
shouldnt be underestimated; on the other hand, that
doesnt absolve the schools at least in New York
from taking the responsibility for making sure that the
playgrounds both their equipment and their grounds
are safe for use by our children. Otherwise, the value of
the learning on the playground may be vastly outweighed
by the danger presented by these playgrounds.
Fortunately, in response to a rash of incidents
involving playground injuries, the Consumer Products
Safety Commission recognized some of the dangers
inherent in playgrounds, and took steps to establish some
basic guidelines that should be followed in terms of
playground safety. New Yorks legislature adopted many
of these recommendations, and they are now the law in
New York.
35
Some of the most important features of these rules

pertain to the safety surfacing that is required on
playgrounds. It is these laws and guidelines that are
reason behind the wood chips or rubber matting that
you will often see on playground surfaces. The schools
responsibility doesnt end there however; they are still
required to maintain these surfaces in proper condition.
A WORD OF CAUTION:
As the next paragraph makes clear, the requirements of
these laws can be somewhat hyper-technical. Therefore,
if you have a question as to whether your childs
playground incident was due to a schools negligence
or violation of the law, you should probably contact an
attorney who has specialized knowledge about this area
of the law.
NEW YORK STATE ADOPTS CPSC
GUIDELINES FOR PLAYGROUND

SAFETY SURFACING
As of July 1, 2007, New York State required

newplaygrounds to be constructed or installed with
safety surfacing that complies with theConsumer Products
Safety Commissions Public Playground Safety Handbook.
36
The enabling statute, NY General Business Law 399dd, states, in pertinent part, as follows:
399-dd. Construction or installation
playground or playground equipment
1.
2.
of
Definitions relative to playground safety. For the

purposes of this section, the term playground
means an improved area designed, equipped, and
set aside for play of six or more children which is
not intended for use as an athletic playing field or
athletic court, and shall include any play equipment,
surfacing, fencing, signs, internal pathways, internal
land forms, vegetation, and related structures.
The consumer protection board, in consultation
with the office of parks, recreation and
historic preservation, shall promulgate rules
and regulations for the design, installation,
inspection and maintenance of playgrounds and
playground equipment. Those regulations shall
substantially comply with the guidelines and
criteria which are contained in the handbook
for public playground safety produced by
the United States Consumer Products Safety
Commission or any successor. The rules and
regulations shall include special provisions for
playgrounds appropriate for children within the
range of ages in day care settings.
37
(Emphasis supplied).
The Handbook goes on to list a number of

acceptable materials that may be used for safety
surfacing. Interestingly (at least at first blush),
one of the more commonly used materials, loose
fill, requires a fair amount of material in order
to comply with the law, as2.4.2.2 (Loose-Fill
Surfacing Materials) of the CPSC Handbook for
Playground Safetythe CPSC Handbook states:
7. Never use less than 9 inches
of loose-fill material except for
shredded/recycled rubber (6 inches
recommended). Shallower depths are
too easily displaced and compacted.
NY STATE TAKES STEPS TO

LIMIT TRAUMATIC BRAIN
INJURY (TBI) TO STUDENTS

Recognizing the perils inherent in ignoring signs of
concussions, New Yorks legislature passed the Concussion
Management and Awareness Act, and it recently became
38
the law of New York State. This is certainly a welcome

development.
The law contains four (4) main provisions:
(1) Parents of student-athletes must sign a permission
slip before their children can participate in practice
or games;
(2) Any student-athlete who is suspected of having
sustained a concussion or mild traumatic brain
injury must immediately be removed from play;
(3) Any student-athlete with a concussion must obtain
medical clearance before returning to play; and,
(4) School coaches, physical education teachers, school
nurses, and athletic trainers must undergo biennial
concussion training.
In my view, the last prong of this statute is probably the
most important, and heres why:
Unless school personnel are trained on how to assess
properly whether a student is in fact displaying the
symptoms of a concussion, how can they be expected
to make an intelligent judgment whether that student is
suspected of having sustained a concussion or mild
traumatic brain injury?
(Hint: Without training, they cant make that
judgment.)
39
Therefore, and in other words, absent Step 4, the

remainder of the statute is probably stripped of any real
meaning or utility.
WHY YOUR CHILDS ASSUMPTION
OF THE RISK MAY NOT BAR HER

INJURY CLAIM
At first blush, the Court of Appeals (New Yorks highest

court) decision in Trupia v. Lake George Central School
District, seems to suggest that when it comes to children,
assumption of the risk will only act to bar those claims
involving athletic or recreative activities, thereby
effectively encouraging schools to offer these activities
- which are valuable - to New Yorks children, without
fear of additional liability exposure.
Further analysis of the Trupia decision raises a lot
more questions than it answers, however.
By way of background, in Trupia, the 12 year-old
plaintiff sustained serious personal injuries when he was
joyriding down a bannister while attending defendants
summer program. In refusing to apply the assumption
40
of risk doctrine and thereby bar the plaintiff s claim, the

Court of Appeals stated as follows:
Little would remain of an educational
institutions obligation to adequately
supervise the children in its charge if school
children could generally be deemed to
have consented in advance to risks of their
misconduct. Children often act impulsively
or without good judgment-that is part of
being a child; they do not thereby consent
to assume the consequently arising dangers,
and it would not be a prudent rule of law
that would broadly permit the conclusion
that they had done so. If the infant plaintiff s
harm is attributable in some measure to his
own conduct, and not to negligence on
defendants part, that would be appropriately
taken account of within a comparative fault
allocation; it is not a predicate upon which
an assumption of risk should be permitted to
be applied.
Judge Smith, in a concurring opinion, stated it more
plainly:
Assumption of risk cannot possibly be a
defense here, because it is absurd to say that
41
a 12-year-old boy assumed the risk that his

teachers would fail to supervise him. That is
a risk a great many children would happily
assume, but they are not allowed to assume it
for the same reason that the duty to supervise
exists in the first place: Children are not
mature, and it is for adults, not children, to
decide how much supervision they need.
Judge Smiths concurrence didnt end there, however.
He continued as follows:
The majoritys [opinion] invites a number of
questions that [it] makes no attempt to answer.
Most obvious among them: What exactly is
athletic or recreative activity? Indeed, why
was Luke Trupias chosen activity-sliding
down a banister-not recreative? He was
obviously doing it for fun. The majority says
that athletic and recreative activities possess
enormous social value (majority op at 5) a value that presumably does not inhere in
banister sliding. But why exactly is sliding
down a banister (supposing it to be done by
an adult with a taste for such amusement)
of less social value than sliding down a
ski slope or bobsled run? And if the latter
activities are more socially valuable than the
42
former, why is the banister slider, who chose

the less desirable form of amusement, in a
better position to recover damages than the
skier or bobsledder?
In my view, the logic of Judge Smiths opinion is deadon, and it raises some very difficult questions. I hope the
Court answers these questions in the near future, and
provides greater clarity on these important issues.
HOW SOME PLAINTIFFS
HAVE CIRCUMVENTED THE
ASSUMPTION OF RISK DOCTRINE

As set forth above, it is certainly true that the Court of
Appeals decision in Trupia v. Lake George Central School
District dealt a serious blow to the primary assumption
of the risk doctrine, holding that a childs risky behavior
does not inherently spell the end of a negligent supervision
case under New York law where the risk is unassumed,
concealed, or unreasonably increased. (Miskanic v. Roller
Jam USA, Inc. 71 AD3d at 1103, citing Morgan v. State,
90 NY2d at 484).
In the context of many sporting activities, however,
the primary assumption of risk doctrine remains alive and
43
well, as [A] plaintiff is barred from recovery for injuries

which occur during voluntary sporting or recreational
activities if it is determined that he or she assumed the risk
because, as an appeals court explained earlier this year,
he consents to those commonly-appreciated risks which
are inherent in and arise out of the nature of such activity
generally, and which flow from the participation. (Reidy
v. Raman, 85 AD3d 892 [2d Dept. 2011].
So how does a plaintiff who was injured while engaged in
a sporting activity get around the primary assumption of risk
doctrine?
As noted in Perez v. Nassour (discussed below), a
plaintiff can try to circumvent this defense by showing
that the defendant created a unique condition over
and above the usual dangers inherent in the sport, such
as by failing to follow its own internal policies, which,
according to the court, may give rise to an unassumed,
concealed or unreasonably increased risk. Diagle v.
West Mountain, 289 AD2d 838 [3d Dept. 2001]. Some
examples of this include where the defendant failed to
close a tubing run in inclement weather, or another
defendants failure to assure that a catcher was wearing a
mask during baseball tryouts.
Under those circumstances, a negligent supervision
claim would stand a strong chance of surviving a
summary judgment motion - at least under the current
state of New York law.
44
Following are some examples that illustrate how

New Yorks courts have, depending on the particular
circumstances, gone both ways on this issue:
A) High School Sued After 2 Teens Collapse
and Die From Heat Exhaustion at Football
Practice
In a story that was reported only recently, there was a
dual tragedy when two high school students died after
collapsing from heat exhaustion during football practice.
Apparently, one of the students had been hospitalized for
heat exhaustion the year before his death; the other had
been urged by his coaches to continue running drills
after he had collapsed.
In truth, the facts reported from this story do
not provide sufficient detail to make an intelligent
determination as to the likelihood of success on the
school negligence claims for either student, for we dont
know what measures, if any, the school had in place to
assure the players were properly hydrated, nor do we
know what the school knew about each students medical
history (or whether the school even asked).
Furthermore, we dont know what symptoms the
students exhibited that could - or should - have put the
school on notice that there was a health hazard, and what
measures, if any, the school took to address them.
45
That said, given the notoriety over the past few years
in the press of stories regarding professional football
players who died from similar issues during training
camp, it certainly stands to reason that a jury could find
that the school was on constructive notice, i.e., knew or
should have known, of the hazards inherent in practicing
in this heat, and the precautions needed to avoid this
particular type of incident - let alone two of them.
B) Split NY Appeals Court Finds School Pitcher
Assumed Risk of Injury

Sometimes, no matter which way you go in a case,
youre going to be left with troubling ramifications.
Therefore, it is not surprising that in Bukowski v.
Clarkson University, one of New Yorks appellate
courts reached a 3-2 split decision, with nearly half
the court opining that this sports injury case should
not have been dismissed.
In this case, the plaintiff was a freshman at
Clarkson University, and was asked to pitch batting
practice in a poorly lit indoor facility, without the
benefit of a protective L screen. What happened
next is fairly predictable: he was seriously injured
when a ball was hit straight into his face.
At trial, the lower court dismissed the plaintiff s
case - before it was even submitted for the jurys
consideration - finding that no rational jury
could find in the plaintiff s favor because he had
46
knowingly assumed the open and obvious risk of

injury associated with pitching batting practice. A
majority of the appeals court agreed, and further
found that there was insufficient evidence to
show that he was compelled to pitch without the
protective screen.
While overall, I agree with the majority in this
particular case, this decision is not without a major
drawback: schools will have less incentive to make
sure that all appropriate safety measures are taken
to protect their student-athletes.
This leads us to the next case:
C) Child Hit in Head at Baseball Practice Didnt
Assume Risk, Says Nassau County Court

As noted above, the general rule in New York
is that that the participants in a sporting activity
may assume the risk that they will be injured in
the process.
That rule makes sense.
There is an explicit exception and limit to
the assumption of risk doctrine, however: where
the plaintiff did not knowingly and voluntarily assume
the risk.
Indeed, a Nassau County trial judges in Perez
v. Nassour specifically relied upon this exception
47
in denying the defendants applications seeking to

dismiss the cases against them, stating:
Defendants have not established their
entitlement to summary judgment.
The infant plaintiff was only 10 years
old and was participating in Little
League and organized sports for the
first time. When he got hurt, he was
precisely where he was instructed
to be doing exactly what he was
instructed to do, per Coach Nassours
instructions. The practice location
time and the equipment location was
chosen by Coach Nassour as was the
sequencing of events at the practice, all
of which may have been violative of the
applicable rules and may have exposed
the infant-plaintiff to unassumed,
concealed and increased risks.
D) After Denying Student Safety Equipment,
New York School Liable for Sports Injury
Says Queens Court

In denying the defendants motion to dismiss
in Shields v. City of New York, et al.. the Queens
County trial court stated as follows:
48
[A] school district remains under a

duty to exercise ordinary reasonable
care to protect student athletes
involved in extracurricular sports
from unreasonably increased risks
(Baker v. Briarcliff Sch. Dist., 205
A.D.2d 652, 655 [2d Dept. 1994]
(internal citations omitted)). The
affidavit of a fellow lacrosse coach that
failure to provide safety equipment is
a breach of sound coaching practices
and the infant plaintiff s testimony
that he had repeatedly requested
safety equipment and was assured that
it would be provided, raises a triable
issue of fact as to the reasonableness
of defendants actions (See, Cody v.
Massapequa Union Free Sch. Dist. No.
23, 227 A.D.2d 368, 369 [2d Dept.
1996]; Baker, 205 A.D.2d at 652; see
also, Royal v. City of Syracuse, 309
A.D.2d 1284, 1285 [4th Dept. 2003]).
49
THE BEST DEFENSE TO A
NEGLIGENT SUPERVISION
CLAIM IN NEW YORK
Sometimes, you read about a case, and when you see

that it was dismissed, it is hardly surprising. Navarro v.
City of New York is one such case, because there was
nothing more the defendant could have done to prevent
the accident.
In Navarro, an appeals court dismissed the case after
the jury rendered a verdict in the plaintiff s favor.
You may be wondering, why would a court go to
such lengths and disturb a jurys verdict? Because even
according to the plaintiff, only 3 to 5 seconds passed from
when she handed the baseball bat to her fellow student
until the time she was hit in the face.
To that end, Where an accident occurs in so short a
span of time that even the most intense supervision could
not have prevented it, any lack of supervision is not the
proximate cause of the injury and summary judgment
in favor of the [defendant school district] is warranted
(Esponda v. City of New York, 62 AD3d 458, 460 [2009],
quoting Convey v. City of Rye School Dist., 271 AD2d 154,
160 [2000]).
50
III. SCHOOL BULLYING/ASSAULTS

A) What is Bullying?

In response to both a lawsuit and a maelstrom of
negative publicity arising out of the purported
sexual assaults and bullying of its high school
students by some of its faculty, a New York-based
private school not only retained an outside firm
andlaunched a large-scale investigation as to the
merits (or the lack thereof ) of these former students
claims, but also charged this firm with the task of
compiling a comprehensive anti-harassment (and
anti-bullying) policy manual for the school.
The manuals definition of bullying, which I
think is rather good, is as follows:
Any form of physical, verbal,
demonstrative, or electronic harassment
that one should reasonably expect
would demean, threaten, or physically
or emotionally hurt its victims or others
at [the school].
It can be of a sexual nature
or otherwise. It can take place
in person, over the phone, in
cyberspace, or through an on-line
51
communication, or any other means

that communicates suchharassment.
It can be one-on-one or groupbased. Both adults and children can
be bullied or bethe bully.

The manual then proceeds to specify some examples

of bullying, which include the following:
pushing, elbowing, poking, tripping,
sitting on, kicking, or hitting
threatening another with physical harm
taunting others because of their physical
traits including, but not limited to, age,
voice,height, weight, athletic skill, social
skills or any other personal characteristic
taunting others,either verbally or
using gestures (or using derogatory
terms)about their actual or perceived
sexualorientation, race, color or national
origin
excluding someone from a group or
activity purposely to hurt them, e.g.,
refusing to letsomeone sit at a particular
lunch table
damaging, hiding, taking of property
posting on Facebook, or any other on-line
social networking site, or texting mean,
52
offensive,demeaning, embarrassing, or
threatening comments or images
B) Can a School Be Held Liable for Bullying
Under NY Law?

In a September 22, 2010 article in the Baltimore
Sun, it was reported that parents of a middle school
student who was repeatedly bullied - despite his
pleas for help from the school - which resulted
in his suffering (allegedly) severe post-traumatic
disorder, had sued the school for their damages, and
for violation of their childs constitutional rights.
The question is, would this case have any
chance for success under New York law?
While I am somewhat skeptical of the Due
Process and constitutional claims, I think that
a New York court would at least allow a jury to
determine whether the students purported posttraumatic stress disorder is 1) real, rather than
manufactured (the indication in the article that
the plaintiff had moved on to a different school
and was doing much better seems to undercut
any claim that the harm he suffered was severe or
permanent); and, 2) whether the schools alleged
unresponsiveness was a substantial factor in causing
the psychological injury.
Ultimately, I think the Court would allow
these claims to be heard by a jury rather than
53
dismiss them before trial because there seems to be

a fair amount of credible evidence that the school
knew, or should have known, about the bullying,
yet did little or nothing to stop it. In other words,
the plaintiff has already cleared the biggest hurdle
to proving a school negligence case: notice.
C) New York State and Federal Anti-Bullying
Statutes and Why Those Statutes (Probably)
Wont Help Your Child
i-a) Why Federal Law Probably Wont Help Your
Bullying Case in NY

Just over a year ago, I wrote an article discussing
whether a school can be held liable for bullying
under New York law. At the time, I noted my
skepticism about the prospects of success for a
bullying claim that was predicated on a violation
of the victims constitutional rights. And now, in
a recent edition of the New York Law Journal,
Illann Maazel, Esq. published an excellent article
discussing that particular issue in depth.
In his article entitled Bullying, Schools and the
Constitution, Maazel notes that the Due Process
Clause actually affords very little, if any, protection
to victims of bullying. Indeed, one Supreme Court
justice has stated that [I]t is perhaps odd that
the states in loco parentis role permits schools to
54
restrain the constitutional rights of children in the

name of safety, without imposing any minimal
constitutional duty to keep students safe.
Maazel goes further:
In many circuits, it is apparently
constitutionally permissible for a
public school teacher to do nothing
while a child is beaten in class by
another student on a daily basis, at
least so long as the bullying is not
motivated by race or another specific
category strictly scrutinized under
the Equal Protection Clause.

That is scary indeed.
Presently, the following appears to be the law
in the Second Circuit (where New York is located):
unless the victim is subjected to harassment due to
his or her belonging to a constitutionally protected
class, such as race, these claims will fail. The
challenges to such a claim dont even end there; the
plaintiff will have to show that
[T]he defendants indifference was
such that the defendant intended
the discrimination to occur. [D]
eliberate indifference can be found
55
when the defendants response to

known discrimination is clearly
unreasonable in light of the known
circumstances. Gant v. Walling ford
Bd. of Educ., 195 F.3d 134, 140-41 (2d
Cir. 1999).

As this next piece demonstrates, this is not merely

a theoretical discussion; it has very real, practical
ramifications.
i-b)
Why Most Constitution-Based School
Bullying Claims Will Fail

A few months ago, I received a call from a distraught
parent whose child had been subjected to repeated
taunts and threats at one of New Yorks public
schools on account of her race. I was asked, Cant
we sue the school for violation of our daughters
civil rights?
I told them the truth.
No, I said. While what happened to
your daughter is terrible, inappropriateand most
distressing, you will probably lose a lawsuit suing
the school district forviolating her civil rights.
A recent decision by a Federal appeals court in
Pennsylvania (the U.S. Supreme Court declined
only recently to hear the appeal of this split
56
decision)illustrates the difficulty with these claims

rather nicely.
In Morrow v. Balaski, et al.,the plaintiff-students
were repeatedly tormented, bullied, threatened
and assaulted by a number of fellow students at the
school, and as a result, secured a protective order
against those students.

The school did not implement measures to assure
that the protective order was followed.Instead, the
school, unwilling - or unable - to stem the bullying,
asked the plaintiffs parents to consider transferring
their children to a different school. Angered by the
schools response, the parents sued and lost.
In affirming the trial courts dismissal of the
plaintiffscivil rights claim under the Due Process
Clause of the Fourteenth Amendment, the appeals
court conceded that they were deeply troubled by
the facts of the case, but nevertheless felt constrained
to dismiss the claim, stating:
[T]he Morrows allege that school
officials violated a liberty interest
by failing to protect Emily and
Brittany from the threats and assaults
inflicted by fellow students.Like the
District Court, we are sympathetic
to theMorrowsplight. Brittany and
Emily were verbally,physically and
57
no doubtemotionally tormented by
a fellow student who was adjudicated
delinquent based on her actions
against the Morrow sisters. When
the Morrows requested that the
Defendants do something to protect
Brittany and Emily from the persistent
harassment and bullying, school
officials responded by suggesting that
the Morrows consider moving to a
different school rather than removing
the bully from the school.
We therefore certainly understand

why the Morrowswould conclude
that the schools response to the
abuse inflicted on their daughters
was unfair and unjust. Nevertheless,
our adjudication of the Morrows
claims must be governed by Supreme
Court precedent.
The Supreme Court has long

established that [a]s ageneral matter,
. . . a States failure to protect an
individual against private violence
simply does not constitute a violation
of the Due Process Clause.DeShaney
58
v. Winnebago Cnty.Dept of Social

Servs., 489 U.S. 189, 197 (1989). The
Due Process Clause forbids the state
itself from depriving individuals
of life, liberty, or property without
due process of law, but its language
cannot fairly be extended to impose
an affirmative obligation on the State
to ensure that those interests do not
come to harm through other means.
Id. at195.

Practically speaking, unless the plaintiffs were able

to show that there was a special duty to themthat
was assumed by the school - and, as a general rule,
it has been held that such a duty is not normally
assumed by the schools - the 1983 claim will fail.
ii) Why New York States Anti-Bullying Law Is

Unlikely to Protect Students From Harm

In the last year, it was reported that Governor
Christie of New Jersey signed into law one of the
toughest, most progressive anti-bullying statutes
in the country. That announcement spurred me
to take a closer look at New Yorks anti-bullying
statute.
And I wasnt impressed.
59
Amid much celebration and back-patting, thenGovernor Patterson signed into law the Dignity
for All Students Act, which, following most of the
country, outlaws bullying in New Yorks public
schools, and also requires the schools to do the
following:
Revise their codes of conduct and adopt
policies intended to create a school
environment free from harassment and
discrimination;
Adopt guidelines to be used in school
training programs to raise school
employees awareness and sensitivity of
to these issues and to enable them to
respond appropriately; and,
Designate at least one staff member
in each school to be trained in nondiscriminatory
instructional
and
counseling methods and handling
human relations.
60
In my view, there is a glaring omission from

this law:
What happens if the school violates this antibullying law?
From my reading of the statute, absolutely nothing.
Therein lies the problem; there is no consequence serious or otherwise - if the school fails to comply
with this law.
As a result, it appears that this new law does
not afford the victims of bullying any greater
protection than they otherwise had beforehand.
D) Examples of How New Yorks Courts Have
Decided School Bullying/Assault Cases
SCHOOL HAS NO DUTY TO
NOTIFY PARENTS OF DANGER

TO CHILD, SAYS NY COURT
Any lawyer who takes on tough cases is going to lose

every now and then. Im no exception to this rule.
And thats exactly what happened in one of my school
negligence cases, entitled Stephenson v. City of New York.
In this case, my client was a Bronx middle school student
who was assaulted by another student in school. At that
61
time, the other student threatened my client, informing

him that this fight wasnt over by any means - and that
he was going to get (the plaintiff ) jumped. The school
knew about this threat, but they chose never to inform
either of these students parents about the fight - or the
threat. And two days later, the other student had some of
his friends pin down my client, and they beat him until
my clients jaw was fractured in two places, and needed
surgical intervention to correct it.
The problem with the case was that this second
assault happened off of school grounds.
And as a result, the school claimed it wasnt responsible
(or, in legalese, liable) for my clients injuries.
I disagreed.
While the Bronx trial court denied the Citys motion
to dismiss the case, the Appellate Division, in a 3-2
decision, reversed.
I was contacted by the New York Law Journal for
my response to the decision, and heres my quotation:
We feel rather strongly that the (majority opinion of
the) Appellate Division was incorrect and we do not
understand how a court can take the position that a school
does not owe a duty to notify the parent of an imminent
danger to one of its students that it had knowledge of.
Granted, this was destined to be an uphill fight. But
I believed that this issue was one of the important issues
in school negligence cases under New York law. And I
believed that my client was right.
62
WHY THIS SCHOOL ASSAULT
CASE, WHICH LEFT GIRL IN A

COMA, WOULD FAIL IN NY
A while back, it was reported that a Florida teen, who

was beaten by a fellow student to the point that she
sustained a traumatic brain injury and was put into a
medically-induced coma. Her parents sued her local
school district, claiming that the school was negligent in
failing to provide their daughter with adequate security,
and therefore bears responsibility for the assault.
To be sure, this is an extremely sad and upsetting case.
But unless her attorney has some competent evidence
that the school either knew or should have known that
this assault was imminent and yet failed to undertake
some reasonable measures to prevent the incident from
occurring, chances are that this case, if it had been
brought in New York, would not survive a motion for
summary judgment (an application by the defendant
school to dismiss the case before trial).
Heres why:
New Yorks courts will not hold a school liable
for the spontaneous, violent and unforeseeable acts of
another student.
63
BUS DRIVERS INACTION
TO STEM BULLYING LEADS

TO LAWSUIT
In another tragic story coming out of Florida, parents of

an 11th grade boy sued their sons school district for the
personal injuries he suffered while trying to intervene
and break up a bullying incident.
The background story is interesting:
Apparently, a group of six boys was bullying another
student on the school bus ride home, and the bus drivers
reaction was to tell the boys to take the fight off his
bus. The boys eagerly obliged, disembarking the bus
before their bus stop just to continue bullying this
other student at his designated stop.
When the plaintiff tried to intervene and break up
the fight, the bullying students turned on him, and
injured the plaintiff in the process.
Several things must be borne in mind that make this
case somewhat distinct from New York:
(1) In this Florida incident, it appears that the school
district owned the bus in question, and the driver
was a school district employee (neither of which
are common in New York);
64
(2) This case against the school district is apparently

being brought roughly two (2) years post-incident,
which would be untimely under New York law;
and,
(3) The reports of the case indicate that the case is, in
large part, predicated on the school districts failure
to abide by its own internal rules and regulations,
which, generally speaking, will not provide an
independent basis for a personal injury claim in
New York.
A SCHOOL BULLYING
CASE EVEN TORT REFORM
ADVOCATES WOULD ENDORSE

While I certainly agree that litigation on the whole is too
rampant, there are school negligence cases that should be
brought.
This is one such case. And unfortunately, some of
the facts of this case are not nearly as uncommon as wed
think it would, or should, be.
After being subjected to repeated - and intensifying
- bullying, an 11 year-old boys parents felt compelled
65
to move to a different county just to get their son into a

safer situation at school.
At this point, you should be wondering Why they
couldnt simply transfer their son to a different school
rather than picking up and moving?
Heres the most frustrating part: Because the school
administration not only ignored the parents repeated
requests to take measures to protect their son (the teachers
also ignored this 11 year-old boys many complaints), but
they also did nothing to help him transfer out of the
school to a different one within the county.
And now, after suffering mild concussions while
slammed against the concrete by his bullies, this boy
suffers from stress-induced nosebleeds and suicidal
thoughts, according to mental health professionals.
HOW ONE STUDENTS
TEXTING LED TO A BIZARRE

CLAIM AGAINST HIS SCHOOL
Its no secret that I am all for holding schools accountable

for their actions - or inaction - when they are negligent,
and fail to protect their students. But some people take
the concept of school negligence WAY TOO FAR. And
a lawsuit that was recently filed by a high school students
66
grandparents in Prince Albert in Canada is exactly one

such case.
Apparently, after having confiscated the students
cell phone for texting during class, the principal read
the message which indicated that the student had some
information regarding a stolen car. The police were
called, and they in turn pushed the student to respond
to the message, which then led to their locating the
stolen car.
Heres where it gets interesting.
The grandparents claim that their grandson
has now been blackballed, and therefore,
they seek compensation for their need to drive
him to a distant school to assure his well-being.
While I dont condone the principal prying into the
students private cell phone without good cause, I find it
hard to sympathize with a teenager who feels threatened
after having involvement - even if only tangentially with a stolen vehicle. And I dont see how that rises to
the level of school negligence, such that the school should
be compelled to compensate him or his guardians for his
poor choices.
67
NYS HIGH COURT TAKES
EXTREME STAND IN SCHOOL

ASSAULT CASE
In Brandy B. v. Eden Central School District, New

Yorks Court of Appeals made it even harder to
win a negligent supervision case in New York.
And while I am not sure that the Court ultimately
reached the wrong result in this case, I am troubled
by the means through which the Court got there.
In this case, a 5 year-old girl was (allegedly) sexually
assaulted by an 11 year-old boy that was on her school
bus. This boy had anything but a clean record.
After being removed from his home and placed
in foster care at age three due to findings of possible
physical abuse and neglect, this boy was later returned to
his father and step-mother upon reaching age 11. In the
interim period, he had been institutionalized in response
to several episodes of severe aggression at home.
After two years without incident (his prior acts had
included inappropriate acts of a sexual nature, including
exposing himself in public) and positive reviews, this 11
year-old student was recommended for, and ultimately
mainstreamed into, a 5th grade class. And that is when
the alleged sexual assault occurred.
In affirming the dismissal of this sexual assault and
negligent supervision case, the Court asserted that since
68
there had been no reported incidents with regard to

the 11 year-old boy for roughly two years before this
incident, [T]he alleged sexual assault against [the
infant plaintiff ] was an unforeseeable act that, without
sufficiently specific knowledge or notice, could not have
been reasonably anticipated by the school district.
And heres where I (and the dissenting judge in this
case) take serious issue with the decision: Shouldnt a
jury be the one to decide whether the school should have
seen this coming? Why did the Court take it out of the
jurys hands?
AFTER BULLIED STUDENT FINALLY

FIGHTS BACK, HIGH SCHOOL
RESPONDS BY EXPELLING HIM

If this story is true - and, I must admit, this students
version of events certainly sounds credible - this may be
one of the more disturbing school bullying stories that
Ive heard.
In Baltimore, a high school student was expelled from
his school just prior to graduation, because after years
of being tormented both physically and emotionally for
being a book worm with a nervous habit, and having
the school repeatedly ignore his calls for help, this student
69
finally responded to two of his attackers by picking up

a screwdriver and threatening: Ive had enough. If you
leave me alone, Ill leave you alone.
In response, the school expelled the victim, and, it
seems, left the bullying students alone.
To be sure, a student who threatens other students with
a screwdriver should be severely disciplined - and perhaps
expelled. But under these particular circumstances, it
appears the school was wrong. By blindly following the
path of zero tolerance (and in only one direction), the
school has victimized this student yet again, in effect
penalizing him for the schools own negligence in failing
to adopt and enforce a zero tolerance policy for bullying.
5 WAYS TO PROTECT
YOUR CHILD FROM BEING

BULLIED AT SCHOOL
At the beginning of every school year, many of our

children are probably somewhat apprehensive about
the new school year and the challenges it may bring,
from new teachers, to new classmates, to an increased
and more difficult workload. Naturally, the children
arent the only ones with these worries; we parents are
70
concerned as well (and no, Im not just referring to our

having to pitch in with extra homework).
Perhaps one of the biggest fears we have is that, G-d
forbid, someone would try to bully one of our kids.
Here is the unvarnished, harsh truth: there are many
kids, particularly adolescents, who can be unkind and
intimidating to their less cool peers. And in most
circumstances, there is little that can be done to prevent that
first instance of bullying from occurring.
That said, there is A LOT that can be done to try
to prevent the bullying from becoming an ongoing,
recurrent problem. At this point, a word of caution is
definitely in order: These steps are neither easy nor comfortable
for anyone involved:
(1) Make Sure Your Home is a Safe Haven for Your Child.
A prerequiste for being able to stop your child from
being bullied on a continual or ongoing basis is that
your child feels comfortable to confide in you that
they are being bullied in the first instance. At the
risk of stating the obvious, you cant help prevent
that which you dont know about.
(2) Be on the Lookout for Signs that Something is Amiss.
Sometimes, it may have little or nothing to do with
the type of home we have, but our child may, by
nature, feel uncomfortable discussing such personal
and unpleasant matters. In those circumstances,
you still have some other arrows in your proverbial
71
quiver. Be alert for any significant changes in their

behavior, and, if necessary, obtain the guidance of
a trusted professional, and try to elicit the reasons
for this behavioral change.4
(3) Get the Facts Straight. Once you become aware of
a problem, it is absolutely imperative that you get
the facts straight. The reason for this is several-fold,
but chief among them is that there is a significant
chance you will be met with resistance both from
the school, as well as the bully (or bullies, as the
case may be), who will likely plead ignorance
or a completely different set of facts. Moreover,
assuming the school takes seriously your version
of events, the consequences for everyone involved
- both scholastically and socially - can be quite
serious. Therefore, it behooves you to make sure
you investigate as thoroughly as possible the events
that transpired to make sure that you have as clear
and unbiased a picture as possible before taking
further action.
(4) If Your Child Was Indeed Bullied, Say Something - in
Writing. Without a doubt, the litany of stories in the
news over the last several years portraying vividly
the terrible world and sometimes tragic outcomes
of bullying is nothing short of horrific. There is one
4 If you need recommendations in this area, I know a number
of truly excellent mental health professionals and programs that are
well-qualified in this area, and would gladly provide you their contact
information.
72
(5
small positive note in all this, however: increased

awareness and vigilance about bullying by the
schools, many of whom have adopted a strict notolerance policy regarding bullying. The stigma
once associated with raising your voice when your
child has been bullied is far less than it once was.
That said, each school and situation is different.
Once youve made sure that an incident report
has been created and is on file (I would strongly
recommend requesting a copy of the report), the
school can no longer deny that they know about
the problem. And, at the risk of stating the sad
but obvious, often the only thing that will get the
school to take firm and appropriate remedial action
is the threat of a lawsuit, which is exactly what that
incident report (whether their internal incident
form or your certified letter) means to them. (For
additional information on this issue, see Why
Reporting Bullying at School is So Important,
below).
Follow Up With the School to Find Out What Remedial
Measures Are Being Taken. Once youve taken it this
far, and brought the issue to the schools attention,
dont let the issue die on the vine. Follow up. Even
the best-intentioned school administrators can
get bogged down in other pressing matters, just
like the rest of us. Generally, and at a minimum,
the school administration will require the bullys
73
parents to come in to discuss the matter to make

sure it doesnt recur.
Hopefully, none of this will ever come up at
any of our childrens schools. But if it does, it may
be worthwhile consulting with an attorney that
specializes in school negligence cases.
WHY REPORTING BULLYING AT

SCHOOL IS SO IMPORTANT
If your child has been subjected to bullying at school on

any type of continuing basis, chances are youve spoken
with the school administration about the problem on
more than one occasion, and probably feel like it doesnt
pay to reduce your complaints to writing.
But youd also be making a terrible mistake.
The reason for this is two-fold:
First, and most importantly, New York schools are
required to gather data on violent or disruptive acts that
occur either on school grounds, or at school functions.
Written complaints are a big part of the data that
must be collected.
This data is then put into a self-diagnostic tool that
computes the schools violence index, also known as
an SVI. If, based on the score, the school qualifies
74
as Persistently Dangerous school, the Education

Department must begin a review process and provide
assistance to address the persistently dangerous
conditions at the school.
Second, if you ultimately decide to file a lawsuit against
the school for the harm that your child suffered, you have
to assume that the school will circle the wagons and
deny having any knowledge of the problem.
To be blunt, hoping the school will own up to being
aware of the issue is both wishful thinking and nave.
Therefore, in order to undercut the schools likely
denial of notice, it is critical that you memorialize these
problems to the school in writing (and, naturally, keep
a copy for your own records, including any responses
from the school), so that you have a (much) easier time
proving your case later on.
WHEN A NEW YORK SCHOOL HAS

A DUTY TO REPORT ABUSE
In the last few years, I have been asked several times both by parents as well as educators - when a schools
duty to report suspected abuse of children is triggered
under New York law. Indeed, in its comments describing
the purpose behind the Social Services Law, New Yorks
75
legislature recognized the manifest need for greater

protection of children, and stated as follows:
Abused and maltreated children in this
state are in urgent need of an effective child
protective service to prevent them from
suffering further injury and impairment.
It is the purpose of this title to encourage
more complete reporting of suspected child
abuse and maltreatment and to establish in
each county of the state a child protective
service capable of investigating such reports
swiftly and competently and capable of
providing protection for the child or
children from further abuse or maltreatment
and rehabilitative services for the child or
children and parents involved (Social
Services Law 411).
A schools obligation to report suspected abuse, is codified
in Social Services Law 413(1)(a), which, in general
terms, requires a school official, which includes but is
not limited to[a] school nurse, to report or cause a
report to be made in accordance with this title when
they have reasonable cause to suspect that a child coming
before them in their professional or official capacity is an
abused or maltreated child.
76
The legislature anticipated that a school employee

may be reluctant to report the abuse out of fear of
retaliation, and therefore, addressed that contingency
in Social Services Law 413(1)(c), which provides as
follows:
Aschoolshall not take any retaliatory
personnel action, as such term is defined in
paragraph (e) of subdivision one of section
seven hundred forty of the labor law, against
an employee because such employee believes
that he or she has reasonable cause to suspect
that a child is an abused or maltreated child
and that employee therefore makes a report
in accordance with this title.
In addition, Social Services Law 419 provides immunity
to those people or entities who report or provide services
based upon a report of child abuse or maltreatment.
Immunity attaches where there is reasonable cause to
suspect that the child might have been abused, and where
the reporting party has acted in good faith (see Goldberg
v. Edson, 41 AD3d 428, 428 [2007]).
And, finally, Social Services Law 420, expressly
allows a private cause of action for money damages upon
the failure of any person, official or institution required
by 413 to report a case of suspected child abuse or
maltreatment (see 420[b]).
77
HOW A SCHOOL CAN BE
HELD LIABLE FOR THE BAD

ACTS OF ITS EMPLOYEES
While it is true that an employer, as a general rule, will

not be held responsible for bad, vicious or negligent
acts committed by an employee that are outside
the realm of that employees job responsibilities,
there is an important doctrine that is an exception
to this rule: negligent hiring and retention.
Under this rule, an employer is duty-bound to show
proper care in the supervision and training of its employees
to ascertain whether they are capable of doing their work
without posing a danger to others. More specifically,
the employer can breach this duty in one of two ways:
(1) if the employer fails to use reasonable care to either
correct the employee or terminate him despite
knowing that the employee has vicious propensities,
has a bad disposition or is incompetent; or,
(2) if the employer knows of facts that could - or wouldlead a reasonably prudent person to investigate
and discover this negative information about the
employee (i.e., that he poses a danger to others) yet
fails to act upon these facts.
78
When the employer breaches its duty in one of these two

ways, New York law dictates that it can be held liable
in negligence for the harm that is caused thereby - even
if the employee was not acting within the scope of the
employers authority at the time.
But, as the next two examples illustrate, some cases
are much easier than others to prove.
NY APPEALS COURT
DISMISSES SEXUAL ABUSE CLAIM

AGAINST SCHOOL DISTRICT
In a split decision that was handed down in August, 2012,

New Yorks Appellate Division, Third Department,
dismissed a negligence claim brought by parents of four
young children who weresexually abused at a schoolby
a high school student -even though this student engaged in
the abuse of these 6 year-old boys onthree (3) separate occasions.
At this point you may be wondering, While I could
understand that the school might not be able to prevent
every single act, how can it be that this student was able
to perpetrate this abuse three times without the school
having the faintest idea what was going on? Apparently,
both the trial court and one justice on this appellate panel
felt the same way.
79
But a majority of the appellate court felt differently,

noting that the student who committed these assaults
had no disciplinary history that would have alerted the
school to be wary of him perpetrating these kinds of acts.
In addition, relying on long-held precedent, the majority
stated that A school is not on notice that children are
being abused merely because they returned late to class on
two or three occasions, especially when they explained
their lateness by saying that the group of them stopped at
the bathroom.
To be sure, this is not an easyschool negligencecase
to prove. However, given the potential damages in this
case (and that one of the appellate justices dissented, and
would presumably agree to grant the plaintiffs leave to
appeal to New York States highest court - the Court of
Appeals), I wasnt surprised in the least when the plaintiffs
tried (albeit unsuccessfully) to appeal this ruling.
IF TRUE, THIS IS HOW YOU
PROVE A NEGLIGENT HIRING &

RETENTION CASE IN NEW YORK
In a news story that broke on February 8, 2014, a former

California high school administrator is now at the center
of three (3) separate lawsuits charging that the school
80
district was negligent in hiring Andrea Cardosa, who

is accused of engaging in inappropriate sexual behavior
with these girls, more specifically, grooming them for
her advances.
So, how is the school district responsible for that?
you ask.
If you give credence to the lawsuits claims, it appears
that Ms. Cardosa had a history of sexual misconduct
involving students, but this history was swept under
the rug by her former school district in exchange for
her voluntarily resigning her position and then moving
to a different school district. In other words, the (new)
school district failed to do its due diligence before
hiring Ms. Cardosa, and thereby put these children
unnecessarily at risk.
Assuming the truth of these allegations (and there is
a companion criminal case charging Ms. Cardosa with
numerous felony counts),this is the paradigm of how
you prove a negligent hiring case against a school
district.
81
IV. HOW CAMP AND SCHOOL LIABILITY DIFFER

UNDER NEW YORK LAW
When we prepare to send our kids to camp, yes, that
includes me, it bears mention that the laws in New York
that are designed to help protect our children while in a
school setting are not as robust with respect to protecting
children while they are at camp.
The distinction is really rather elementary:
Summer camps, unlike schools, are not bound by various
student-protective statutes, such as the anti-bullying law known
as the Dignity for All Students Act.
Thus, at first blush, it seems like a schools
responsibility for student safety would be far greater than
at camp.
But is that really true?
Under New York law, camps, like schools, stand in
the role of a parent during the time that the campers are
in their charge.
This means that while camps wont inherently be held
responsible for every accident that occurs to one of its campers,
they will be held responsible if the injury results from their lack
of supervision.
82
One of New Yorks appellate courts summarized this

rule as follows:
Schools or camps are not insurers of
the safety of their students or campers, as
they cannot reasonably be expected to
continuously supervise and control all of
their movements and activities Rather,
schools and camps owe a duty to supervise
their charges and will only be held liable for
foreseeable injuries proximately caused by the
absence of adequate supervision.(seeMirandv.
City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d
372, 637 N.E.2d 263; Doe v. Department of Educ. of
City of New York,54 A.D.3d 352, 353, 862 N.Y.S.2d
598;Pacav. City of New York,51 A.D.3d 991, 992,
858 N.Y.S.2d 772).
As a practical matter, campers are typically engaged in

far more outdoor, vigorous activities, than they are as
students during the school year. In addition, camps,
especially sleep away camps, have campers in their charge
for far longer periods of time and in far more locations
than typically occur during the school year.
Consequently, from a practical perspective, it would
seem that camps actually face far greater potential liability
than schools, even though their statutory responsibilities
are far less, if not non-existent.
83
V. PRACTICAL CONSIDERATIONS/CONCERNS
IN SUING A MUNICIPALITY
HOW A MUNICIPALITY IN NEW
YORK CAN BE HELD LIABLE FOR

FAILING TO PROTECT YOU
New Yorks courts have long held that a municipality

or municipal agency, such as the New York City school
system, cant be held legally responsible for failing to
protect any particular citizen unless there is a special
relationship between that individual and the municipality.
But what does that mean?
Back in 1987, in one of the seminal cases that addressed
this topic, Cuffy v. City of New York, New Yorks Court
of Appeals articulated this rule as follows:
As a general rule, a municipality may not
be held liable for injuries resulting from a
simple failure to provide police protection
... This rule is derived from the principle
that a municipalitys duty to provide police
protection is ordinarily one owed to the public
at large and not to any particular individual
or class of individuals. Additionally, a
84
municipalitys provision of police protection

to its citizenry has long been regarded as a
resource-allocating function that is better
left to the discretion of the policy makers
(see, Weiner v. Metropolitan Transp. Auth., 55
N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d
124, supra). Consequently, we have generally
declined to hold municipalities subject to
tort liability for their failure to furnish police
protection to individual citizens.
There exists, however, a narrow class of cases
in which we have recognized an exception to
this general rule and have upheld tort claims
based upon a special relationship between
the municipality and the claimant (De Long
v. County of Erie, 60 N.Y.2d 296, 304, 469
N.Y.S.2d 611, 457 N.E.2d 717; see, e.g.,
Sorichetti v. City of New York, supra; Florence
v. Goldberg, supra; Schuster v. City of New
York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154
N.E.2d 534). The elements of this special
relationship are: (1) an assumption by the
municipality, through promises or actions, of
an affirmative duty to act on behalf of the
party who was injured; (2) knowledge on the
part of the municipalitys agents that inaction
could lead to harm; (3) some form of direct
85
contact between the municipalitys agents

and the injured party; and (4) that partys
justifiable reliance on the municipalitys
affirmative undertaking.
Even a quick review of the subsequent cases applying
this rule leaves no doubt that the courts have construed
the special duty exception very narrowly indeed; the vast
majority of these cases are dismissed.
THE MOST CRITICAL MISTAKE
TO AVOID WHEN SUING A NEW

YORK MUNICIPALITY
Ive been asked, more than once, why it is so important

for parents to assure that a public school or other New
York municipality, receives formal written notice of their
childs injury claim as soon as possible after an accident.
Unfortunately, heres where a little knowledge is
dangerous.
It is certainly true that New Yorks Civil Practice
Law & Rules (CPLR) Section 208 tolls the time
within which a child must bring the lawsuit until the
child is no longer an infant, i.e., under 18 years of age.
But - and heres the important point - the time within
86
which a Notice of Claim must be filed (which is within

90 days of the occurrence) is NOT tolled.
If a parent fails to file the requisite Notice of Claim,
all hope is not (necessarily) lost, provided that less than
1 year and 90 days have passed from the date of the
incident. In that case, you can file a formal application
with the court requesting that it extend your time to file
the Notice of Claim, and so long as you can demonstrate
that the defendant had actual knowledge of the facts
giving rise to the claim within 90 days of the occurrence,
and you can also prove that you have a reasonable excuse
for the delay, the court retains the discretion to allow the
late filing.
Missing that deadline, on the other hand, can prove
fatal to a childs injury case. As one of New Yorks
appellate courts noted:
A claimants infancy will automatically toll
the applicable one year and 90-day statute of
limitations for commencing an action against
a municipality (see General Municipal Law
50-i; Henry v. City of New York, 94 N.Y.2d
275, 702 N.Y.S.2d 580, 724 N.E.2d 372).
However, the factor of infancy alone does
not compel the granting of a motion for leave
to serve a late notice of claim. Rennell S. v.
North Junior High School, 12 A.D.3d 518, 784
N.Y.S.2d 623 (2d Dept. 2004).
87
Needless to say, it is vastly preferable to avoid this risk

altogether. Therefore, if you believe you may have a
legitimate claim against a municipality (unlike regular
defendants, where there is, generally speaking, no great
time urgency), it is important that you contact a lawyer
fairly quickly after your accident.
WHY WRONGFUL DEATH CLAIMS

ALLOW FOR MORE THAN
1 YEAR & 90 DAYS TO SUE A

NEW YORK MUNICIPALITY
Perhaps most prominent exception to the general rule

that a lawsuit must be filed within one year and 90 days
of an occurrence in New York, is where the claim is for
wrongful death.
NY Gen. Mun. Law Sec. 50-i provides that in those
circumstances, the representatives of the decedent have
two (2) years, as opposed to the standard one year and 90
days, to bring the claim. There is an important caveat to
this rule, however:
Just because your time within which to commence a
formal law suit against the municipality may be longer,
doesnt necessarily mean that your time within which
88
to file and serve the Notice of Claim (which remains a

condition precedent to suit) will automatically be granted;
the claimant will still have the burden to show that the
defendant was on notice of the essential facts underlying
the case, and that the plaintiffs have a reasonable excuse
for their tardiness in serving the Notice of Claim.
WHY ITS SO IMPORTANT TO
INVESTIGATE YOUR CHILDS

NEGLIGENCE CLAIM
BEFORE YOU FILE SUIT IN

NEW YORK
Without question, negligent supervision claims against

schools are difficult to prove successfully. But this task
becomes infinitely harder when the childs claim is not
appropriately investigated before legal papers are served
and the case is begun.
In Tsai v. Duh, the plaintiff-student was struck by
a vehicle that was passing in front of his school during
the schools lunch break. Following depositions, the
defendants moved to dismiss the childs personal injury
action on different grounds. The driver of the vehicle
that struck the plaintiff-pedestrian asserted that the child
89
darted out into the roadway, and afforded him no chance

to avoid colliding with the plaintiff. The City of New
York, on the other hand, claimed that since the accident
technically occurred off of school property, they could
not be held liable.
In responding to the Citys papers, the plaintiff s
attorneys asserted a new theory that they never before
raised in their initial notice of claim or their complaint:
since the childs school had a closed lunch policy, the
school had a special duty to protect the child and
prevent the child from leaving the school during this
time, and they failed to fulfill this responsibility.
While even a cursory reading of this decision makes
clear that the Court was inclined to dismiss this lawsuit,
the Courts language in rejecting this claim should be
taken to heart:
This theory is not contained in the plaintiff s
notice of claim or complaint. Causes of action
for which a notice of claim is required which
are not listed in the plaintiff s original notice
of claim may not be interposed.
90
HOW WE DETERMINE
IF WE ARE GOING TO
ACCEPT YOUR CASE
Since it takes a significant amount of time, money and

effort to conduct the necessary investigation to prove
the defendants were negligent (even in a case where the
liability is fairly clear-cut), and to review this information,
as well as the pertinent medical records with carefully
selected experts, I believe that the monetary damages for
your case must exceed $50,000, or you must have suffered
a significant and permanent disability or disfigurement
to warrant the expense and risk of prosecuting your case.
I concentrate my efforts on increasing the value of good cases. I
have no interest in exacting greenmail for frivolous ones.
Assuming that your case meets this threshold, I will
take a comprehensive statement of the factual history
of your claim, and will ask that you assist my office in
obtaining records that will be necessary to prosecute
your claim, including tax and employment records, and
of course, your medical records. Before proceeding any
further, it is important to mention (although the attorney
ads never tell you this), if your medical bills were covered
by a health insurance plan (or Medicare/Medicaid),
those plans will likely demand reimbursement out of
the proceeds of any personal injury recovery. Likewise,
if you received Workers Compensation benefits due to
91
the injuries you sustained in an accident, your employers

insurer will likely assert a lien against any recovery you
get in your case.
HAVING A CLEAR UNDERSTANDING

OF THE ROLES THAT YOUR
ATTORNEY AND YOU HAVE IN THE
LITIGATION PROCESS IS CRITICAL

TO THE SUCCESS OF YOUR CASE
You have every right to expect that your attorney will

give you, at a minimum, quarterly updates on the status
of your case. Your attorney should also keep you apprised
of significant developments in your case as they occur.
Some examples of this include when the complaint is
filed, advance notice of your deposition (including
scheduling a preparatory session), and when your case
has been assigned a trial date.
You should also find out which attorney will actually
be working on your case. One of the chief advantages
of hiring a smaller firm, such as mine, is that the vast
majority, if not all, of the details of your case will be
handled by one attorney. In order to further clarify the
role that the attorney may play in your case, following
92
is a general outline of the tasks that he/she may do in

prosecuting your case:
Client interview
Educate you about negligence claims
Gather documentary evidence, including
photographic, investigative and medical records
Interview known witnesses
Research and analyze the pertinent legal
issues, such as comparative negligence (i.e.,
the claimants relative degree of fault for the
accident), the defendants compliance with (or
violation of ) statutory or regulatory guidelines
Obtaining the relevant medical literature and
talking with your doctors (or assuring that you
are sent to appropriately qualified doctors) to
gain a fuller understanding of the extent of your
injuries
Obtaining and analyzing all applicable insurance
policies to ensure (to the extent possible) that all
available avenues for recovery are contacted
Obtaining appropriate expert reviews of your
claim
Recommending whether an attempt should be
made to negotiate the case with the insurance
company (if applicable), or whether suit should
be filed
93
If suit is filed, preparing the client and witnesses

for depositions
Preparing written demands for documents, such
as incident reports, from the defendants, and
responding to the defendants written discovery
demands
Preparing and/or responding to motions made
to the court on various legal and discovery issues
Going to court to set a discovery schedule and a
trial date
Preparing the client and witnesses for trial,
including organizing medical and demonstrative
exhibits, filing briefs and/or motions with the
court to eliminate surprises at trial, taking the
case to trial with a jury or judge, and analyzing
the jurys verdict to determine if either side has
grounds to appeal the case5
On the other hand, your attorney should explain that
you will be expected to keep his/her office advised as
to the status of your medical treatment, of any change in
your contact or insurance information, and, perhaps most
importantly, to keep the appointments that are made for
you in the context of the litigation. (On personal note, I
have fired clients that failed to keep their appointments
without justification, because I have found such behavior
5 Our agreement with you does not obligate us to participate in
any appeal.
94
not only time and money-consuming, but embarrassing

for my office before the courts and my adversaries.)
THE LEGAL PROCESS IN

ACCIDENT CASES
In most serious injury cases, attempting to negotiate with

the insurance company before filing suit is a waste of
time. The insurance companies use pre-suit negotiation
in order to get a head start on their investigation of your
claim, and to dig up as much dirt as they can about you,
and particularly, anything they can use to demonstrate
that your injuries were caused by something other than
this accident. Moreover, I have seen several lawyers get
into trouble by allowing cases to remain in this claims
stage until just before the statute of limitations has
expired before filing suit.
In New York, a lawsuit is begun by filing a summons
and complaint in the appropriate court. After the
defendants serve their answer to the complaint, both
sides engage in the legal process called discovery. In
discovery, the defendants will be permitted access to your
medical, work history and income records. Additionally,
you will be required to give a deposition under oath, and
to submit to one or more medical examinations by the
95
defendants designated doctors. In short, when you file

an accident case, your life becomes an open book.
On the other hand, the defendants are also
subject to discovery. They will be required to provide
documentation in terms of accident reports, records of
prior similar occurrences (in defective premises cases)
and photographs of the instrumentalities involved and
the accident scene. The defendants will also be required
to submit to depositions under oath.

After the discovery process has concluded, the
plaintiff is required to file with the Court a document
called the note of issue, which certifies that the case is
ready for trial. Although it varies greatly from county
to county, you can generally expect to go to trial in
approximately 9 months - 1- years after the note of
issue is filed.
WHY YOU SHOULD HIRE US

As Im sure you are aware, there are many, many attorneys
who advertise for accident cases. Unfortunately, some of
these attorneys have so many small cases in their offices
that few, if any, cases get their personal attention. Others
have no intention of trying your case themselves, and if
the case cannot be settled with the insurance company,
96
they will try to refer your case to another law firm for
trial purposes.
Our clients get personal attention because we
are very selective in the cases that we take. Without
looking at formal numbers, we probably decline well
over 90% of the cases that are referred to our firm in
order to devote personal, careful attention to legitimate
cases with serious damages.
OUR SERVICES
We are here to represent you every step of the way of
your claim. Sometimes the best advice is that you do not
have a claim that can be won. If that is true, we will tell
you so. If your case meets our criteria for acceptance,
you can be assured that you will receive my personal
attention. I will keep you advised as to the status of your
case, and give you my advice is to whether your case
should be settled, or whether we should go to trial.
An initial consultation is free. We will fully explain
our fees and costs to you before proceeding. Together,
as a team, we will decide on the tactics best suited for
your case.
Jonathan Cooper
97
l aw offices of
Jonathan M. Cooper
483 Chestnut St.
Cedarhurst, NY 11516
Phone: 516.791.5700
Fax: 516.791.8188
Toll Free: (888) 497-3410
NEW YORK CITY
135 West 29th Street Suite 801
New York, NY 10001
www.JonathanCooperLaw.com
www.JMCooperLaw.com
Jonathan Cooper is, first and foremost, a husband
and father to eight (yes, thats right - 8) adorable

children with whom he lives in Queens, New
York. Less importantly, he has litigated numerous
cases arising out of school negligence before New
Yorks courts, including one matter that he had
the privilege of arguing before New York States
highest court - the Court of Appeals.
Jonathan is a sought-after lecturer, having delivered multiple Continuing
Legal Education seminars to other attorneys, and has published hundreds of
articles on topics related not only to school negligence (which is obviously
dedicated to protecting children), but also in order to educate parents about
their rights in their work environment, insofar as it relates to business torts,
including breach of contract and particularly non-compete agreements. His
articles have been published by the New York Law Journal, and he has been
quoted by the Wall Street Journal, and the Long Island Business News.
The real public service though, has been Jonathans websites, blogs and
educational videos, which provide a lot of free, useful information and
links on a variety of topics, such as school and daycare negligence, breach
of contract (and of duty of loyalty), and non-compete agreement-related
claims under New York law.
Visit Jonathans sites and blogs at:

www.JonathanCooperLaw.com
www.JMCooperLaw.com
$16.95
WORD ASSOCIATION
PUBLISHERS
www.wordassociation.com
1.800.827.7903

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WHEN SCHOOLS

Jonathan M. Cooper, Esq.

A Parents Guide to School & Daycare Negligence Cases in New York

Jonathan M. Cooper, Esq.

Copyright 2014 by Jonathan M. Cooper

SCHOOL & DAYCARE NEGLIGENCE........................14

In a New York School Negligence Case, Who Do You Sue?................. 14

School Has No Duty to Notify Parents of Danger to Child,

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

NOT EVERY MISHAP

In fact, the instances warranting legal action are few and

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

And you know what? I didnt sue for any of those

WHY I WROTE THIS BOOK

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

Third, and quite frankly, this book saves me a lot

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

Perhaps the most often usedand misleading

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

would have any impact on your potential case? To

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

THE INFAMOUS MCDONALDS

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

Many of my colleagues and I have found that

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

in painting trial lawyers as the villains behind rising

2 The press release announcing the publication of this study can

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

These findings cast doubt on that view

IS THIS BOOK FOR YOU?

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

defending the insurance industry and governmental

THIS BOOK IS NOT

That being said, it is important that you understand the

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

we have mutually agreed in writing that I have accepted

HOW SCHOOL NEGLIGENCE

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

widely depending on the type of accident involved.

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

On the other hand, there are some factors endemic

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

I. SCHOOL & DAYCARE NEGLIGENCE

As noted below, the most critical mistake to avoid when suing

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

Department of Education), there are also some cases that

HOW TO PROVE YOUR SCHOOL

Back in 2009, at the conclusion of a trial, a jury found

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

Yorks courts have long held that during school hours

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

which the latter child falls to the ground and is injured.

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

WHAT ARE SOME TYPICAL

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

Because these stories invariably did not occur

From the reporting on this story, it appears that an

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

C) Split Appeals Panel Dismisses Bronx School

Just because an accident happens at school doesnt

WHEN SCHOOLS FAIL TO PROTECT OUR KIDS

because she apparently recognized that a dangerous

In my view, this case should never have been