Children under the Law

“My son’s bike was damaged (but fortunately not my son) when a neighbor’s child had disingaged a parking brake on the family car and, since the car was a stick shift parked in nuetral, the car began to roll out of the neighbor’s driveway into the street, striking my son’s bike. Can I sue to get the bike fixed?”

The short answer is yes.  The best claim you have is against the owner of the car for negligent entrustment of the vehicle to a young child.  Even if the owner did not leave the car unlocked with a child alone in the car, so long as the owner left the keys in a location for the child to get to them, the owner would be responsible for safeguarding the vehicle.

In civil court, children under 4 cannot be charged with negligence  and children under 6 cannot be charged as violating the vehicle and traffic law. Although older children can be held liable for violating the vehicle and traffic law, children over 6 are only held to be responsible for laws they understand. Children over 4 could be negligent under the law, but their conduct is compared to “a reasonably prudent” child of the age of the child in question.

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.

Worn Steps

“I fell inside my building on interior stairs while I was walking to my apartment. There was nothing on the stairs, but the building is old and the steps are quite worn. Do I have a case?”

You might have a case, depending upon how worn are the steps and and if that wear created a hazzardous condition on which to walk.  This is the type of defect of which our office would make a personal inspection and possibly hire an expert to examine the steps and take measurements.

Even though you may have walked up these stairs many hundreds or thousands of times, if the stairs are in such a condition so as to create a hazardous condition, then your landlord would be responsible for maintaining the stairs in a safe and passable condition.  Whatever your injuries are, we advise all of clients to go to the doctor and follow your trusted physician’s instructions so you can recover from your injuries.


Landlord Liability

“I fell inside of my own apartment. Can I sue my landlord?”

There is more information an attorney would need to know before he or she could really answer your question.  But my best answer is if you fell because of something you, as the tenant did, to create the condition which caused your fall, then the answer is no. However, if the the reason you fell is because of a maintenance issue the landlord is responsible for, then yes, you can sue your landlord.

To illustrate the first type of case — an accident caused by something you did — you would look at what you were doing at the time of the accident.  If you fell because you tripped on the cord to the vacuum cleaner when you were tidying up, then the landlord is not responsible. Similarly, if you fell on a wet floor because you were mopping your kitchen or bathroom floor, then you cannot sue your landlord. In both instances, you created the condition which caused your accident.

But if there is a leaky pipe in your your apartment that your landlord neglected to fix despite your repeated complaints, then you can sue your landlord. Similarly, if your landlord undertakes repairs in your apartment, but creates a hazardous condition, like construction debris or tools on the floor and someone trips and falls on one of the hazards, the the landlord is liable.

Bankruptcy Stay

“I have an existing case which seems to be taking forever to settle. I was told there is a stay or hold on the case because one of the defendants is in bankruptcy. How long can a case be stayed?”

When we initially consult with clients, we try to give clients a range of how long their case might be around until it is resolved. This is far from an exact science, but based upon the case type, likely venue, and decades of experience, we are able to give people a good faith range. However, when one of the defendants files for bankruptcy protection, this puts a hold on the case until the bankruptcy case is resolved in some fashion.

A bankruptcy is settled when the creditors agrees to a plan to pay off debts, or the debtor files for liquidation to get rid of their debt. Either of these options take years, and all the while, the personal injury case sits idle. We normally advise our clients to go to the bankruptcy court and petition to lift the stay to the extent of available insurance. This limits the personal injury recovery to the extent of insurance (whether it is $1 million or $25,000), but it moves the personal injury case toward settlement. This is normally in the injured party’s interest because if the defendant is already bankrupt, the odds of collecting a judgment against such a defendant are minimal.

Bankrupt defendants must be handled quickly and professionally. The attorney must file a ‘proof of claim’ with the bankruptcy court when she or he learns of the bankruptcy. The attorney will also have to file a stipulation or possibly a motion in bankruptcy court to lift the stay.

I will share one story of a prior case with our office of one of the longest running cases we had. In this particular case, after some initial discovery, one of the defendants filed for a bankruptcy stay putting the case on hold. The defendant was a business entity and it took some time to lift the stay in bankruptcy court.  Unfortunately, when the stay was lifted on the defendant, the defendant’s insurer went bankrupt. There was another stay until the New York Liquidation Bureau took over the case from the bankrupt insurer and eventually the client received a settlement. But this case was an extreme outlier.