Category: negligent supervision

Claims Against Municipality, Infant, negligent supervision, School Liability

Assumption of Risk

A recent Court of Appeals touches on an issue present in two prior posts: one post was on injuries at school, and a second post dealt with exculpatory clauses. The legal issue is Assumption of Risk.

The Assumption of Risk rule announced in 1929 by legendary Judge Cardozo of the Court of the Appeals states: “one who takes part in . . . a sport accepts the dangers that inhere in it so far as they are obvious and necessary.” The rule was given an updated interpretation on April 27, 2023 in the cases of Grady and Secky.

Secky was a basketball player at New Paltz High School. The Coach asked players to participate in rebounding drill with another player to compete for a rebound. Secky got the worst of the competition and was thrown into bleachers, causing a right shoulder injury.

Grady was a baseball player at Chenango Valley High School. Grady was participating in a fielding drill with five players and two coaches. Grady was stationed at first base. To Grady’s right (between first and second base) there was a seven foot by seven foot fence. And on the other side of fence was a second player stationed at “short first base.” There was also a thrid baseman, short stop and second baseman. One coach was hitting ground balls to the third baseman who was throwing to the first baseman. A second coach (at the same time) was hitting ground balls to the short stop who was directed to throw the ball to the second baseman, and then the second baseman would throw the ball to “short first base.” Unfortunately for Grady, one of the balls from the second baseman, missed the “short first baseman,” went past the fence, and struck Grady on the right side of his face, causing significant vision loss.

The Court of Appeals overruled the Supreme Court and the Appellate division and found Grady has a case that can go to jury and let the jury decide if this baseball drill was unique and created dangers over and above the usual dangers of baseball.

Secky was not as fortunate. The drill did not unreasonably increase the risk of injury beyond that inherent in the sport of basketball.

Infant, negligent supervision, Slip and fall accident

Exculpatory Clauses

My son was injured at a birthday party while rock wall climbing. Before he began to climb, I signed a waiver which said I would not sue the party venue. But, my son appers to have injured his shoulder badly when he fell. Can I sue the party venue anyway?

The short answer is probably. General Obligations Law section 5-326 voids any agreement purporting to prevent lawsuits against venues that offer public amusement. Assuming that you paid a fee for your son to rock wall climb and you signed that waiver at the time you paid a fee, you can bring a claim against the owner of the facility.

But just because you can sue does not mean you will win a settlement. You still must show the rock wall climbing facility was at fault for your son’s accident. For example, if your son was hurt because the spotters holding the safety rope for your son was negligent, then you would have a claim. Similarly, you would have a claim if there was a malfunction with the safety rope or any other circumstance within the control of the rock wall climbing facility.

There may be other considerations for young children and high schoolers playing organized sports. The legal doctrine of assumption of risk may affect the ability to bring a successful claim. This issue was briefly addressed in a prior post concerning injuries at school and will be addressed in a future post in more detail.

Claims Against Municipality, negligent supervision, School Liability, Timely Notice of Claim

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.

Claims Against Municipality, negligent supervision, Trip and Fall Accidents

Negligent Supervision

“My child came home from school complaining of an injury to her shoulder that she said another girl at school gave her, can I sue the school?”

There are many issues this type of case brings up which are just not addressed in the question. Rather than highlight what is not known, I will attempt to outline the various claims a student could bring.

There are two sets of laws that could apply to this situation: federal and state law. A student could bring a claim based in federal law under Title IX of the Federal Civil Rights Law. The three claims this student could bring are for (1) erroneous outcome (2) selective enforcement and (3) deliberate indifference. To establish a claim for erroneous outcome, a plaintiff must show specific facts that cast doubt on the accuracy of a disciplinary proceeding.  A selective enforcement claim requires a showing that, regardless of the student’s guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student’s gender.  In order to prevail on a claim of deliberate indifference, a plaintiff must show that a school’s response was clearly unreasonable in light of the known circumstances.

There is a lot to explain, but given the lack of facts in the question, it is difficult (and very lengthy) to explain these concepts in abstract.

The state law claim would be for negligent supervision and would just not include the circumstances surrounding the incident in which the injury arose (for example, were there teachers present) but the care of the student following the incident (for example, did the student see a school nurse, was the parent notified, etc.).

I would respectfully suggest that it would be best to sit down and try to get the whole story before explaining all available claims.

One other warning to this claim: if the student is enrolled in public school there may be additional requirements for filing a notice of claim within 90 days after the incident and filing a summons in court within one year and 90 days.