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Protecting the Vulnerable

“When I was young, I was abused in a foster home. What can I do now to obtain some justice?”

I am sorry for whatever abuse you endured.

If you want justice for abuse, the first thing I would advise you to do is report what happened to the police. Your question doesn’t state your age nor the nature or time of the abuse, but I would advise you to report crimes to the police. Depending on what happened and when it happened, the District Attorney may or may not be able to bring charges against the perpetrator.

You may also have civil claims that you can bring against the perpetrator and the authority that investigated the perpetrator before and after you were placed in their custody. The Child Victims Act extended the statute of limitations for victims to make claims against perpetrators. Claims against the perpetrator directly may have no value since the perpetrator may already be in jail and unable to pay any judgment.

There may be several claims against the Department of Social Services and Child Protective Services. One claim could be Federal Civil Rights claim under 42 USC 1983. Federal Civil Rights claims require that the municipal entity showed “deliberate indifference” to the victim’s welfare and safety. That means that the municipal employee disregarded a known or obvious consequence of his action or inaction. This can be inferred from a “pattern of omissions revealing deliberate inattention to specific duties imposed for the purpose of safeguarding plaintiff’s from abuse.”

Cases like these can drag on for a long time. But the Federal claim will give the plaintiff the best chance to obtain crucial discovery, necessary to prove a claim, from the municipal entity. Most of the records of these agencies are protected from discovery by statute. But a viable claim against the municipal entity would give the Court the leverage to order documents to be turned over during discovery.

There are many other considerations and claims. Needless to say, an extended consultaion with an attorney would be your best course of action.

Assaults at Work II

In a previous post, the issue of Compensation for assaults by a co-worker was addressed. The question was asked if an assault by a co-worker was covered by Worker’s Compensation. The answer was Compensation would cover a claim arising out of an assault that occurred on the job. A second issue that may arise in this case is the right of an employee to directly sue a co-employee for assault.

Generally, employees may sue not their co-worker’s for negligence. If your co-worker’s negligence causes you to sustain injuries on the job, then your exclusive remedy is Compensation benefits. However, if that co-worker punches you, then you can also sue that co-worker for assault.  Unlike Compensation claims, in a suit for assault, the injured employee can obtain an award for pain and suffering.

Sometimes, direct suits against co-workers do not work out. Sometimes, employees may not be able to identify the assailant.  Sometimes, law suits against co-workers result in judgments that can never be collected because the assailant is insolvent.

But the injured worker can still elect to sue the assailant and can have a judgment against that person in the event the assailant ever becomes solvent in the future.

Injuries at School

“My daughter was injured playing softball at school.  She broke her ankle and needed a rod and pins inserted in her leg to repair it. Can she sue the school?”

Injuries incurred while engaging in recreational activities may lead to a successful claim against the school.  But while playing any sport, every particpant assumes that she or he will be subject to some risk that is not present in the classroom. The question of school liability comes down to handling the risk in the best way possible.

The standards for school conduct are different if the activity occurred during school hours in a physical education class versus an interscholastic competition. Besides seeing if written safety policies were followed, the court would have to look at the equipment involved (was it certified by the National Operating Commttee on Standards for Athletic Equipment?). Were the parents fully apprised of all the risks? How much training and experience did the coach have? Was the coach ever evaluated? Were there any prior complaints about the coach? If the safety equipment was certified, did the athlete have adaquate training so she knew how to use the equipement? Did the athlete have proper training to avoid injury? Was the athlete in good physical condition so she could avoid injury? Was the school equiped to render medical assitance so as to avoid further injury to the athlete?

There are many more areas of inquiry depending upon the cirmstances. Without spending more time discussing specifics, it is impossible to determine if the school was liable.

Assaults at Work

“I was injured at my job when a recently hired co-worker lost control of himself and punched me. Do I have a claim against my employer for hiring someone unstable?”

The short answer is yes.  This type of incident would be covered by Worker’s Compensation. Your employer’s Compensation Carrier will cover your medical bills and pay you lost wages while you recover from your injuries. Depending on the type and severity of your injuries, you may be entitled to a settlement at the conclusion of your Compensation case.

 

Injuries Abroad

“I was injured on a jet ski during a recent trip to the Bahamas. Can I sue the hotel for my injuries?”

This is a very complicated question. The answer is going to be probably not. But, the question is so complicated, it would probably take a a long consultation to give you a more precise answer with reasons why you probably couldn’t  sue the hotel.

You will have to consider jurisdiction, the applicable law, the doctrine of forum non conveniens, as well as forum selection clauses, mandatory arbitration clauses, and choice of law clauses. Each of these issues could fill up several law review articles, so I will only attempt to highlight the issues.

If you are injured in the Bahamas, there are substantial questions if an American court has the jurisdiction or authority to hear the dispute between the parties. An American court can have jurisdiction if the hotel or booking agent had marketed itself to people in the State. This may not be difficult, especially considering the internet allows easy international marketing, but this is only the first step.

Second, even if the American court has jurisdiction over the matter, the Court may be compelled to apply the law where the incident occurred. In the Bahamas, there are no jury trials or contingent fees where lawyers can represent victims for fees payable out of the victim’s recovery. (Doe v Sun International Hotels, Ltd., 20 F.Supp.2d 1328 (SD Fla. 1998))

Third, if the case survives the first two hurdles, it must survive a motion to dismiss for forum non conveniens. Essentially, the American court may have jurisdiction, but may decline to exercise that jurisdiction because which court is better suited to interpret the laws of a foreign country, an American court or the Courts in the foreign country?

Finally, if the case can move forward after those three issues, the booking agreement may have a clause or clauses buried in it which may dictate that any disputes be settled in a specific forum (country), or disputes must be settled using only the law of another country, or disputes be settled with arbitration for compensatory damages (medical bills) with no claims for pain and suffering.

Thus, without further information, it is impossible to say with certainty. But chances are, any claims you may have will be derailed by one of the above mentioned issues.