Wednesday, June 17, 2009

Assumption of the Risk

Assumption of the risk ("AOR") is one of the classic defense arguments made against an injured person. It goes something like this: "I, the defendant, am not responsible for your injury because you engaged in an activity you knew could be dangerous." In other words, the injured party assumed the risk of injury. As trial attorneys we at Tolmage Peskin come across this defense frequently.

The AOR defense has its limits. Justice Schneier gave a good summary of those limits in the case of Fourtounis v. MJB Service Station Inc. Justice Schneier first reminds us that AORis not necessarily an absolute bar to recovery. AOR is a measure of defendant's duty of care. In other words, if there's a situation where the plaintiff has assumed the risk, the defendant has to do less, if anything at all, to insure plaintiff's safety.

This of course, leads to the conclusion that a defendant isn't totally off the hook. Take Fourtounis as the example. In this case, the plaintiff got up on a repair shop's lift with his car while the lift was on the ground,assisting in the car's cleaning. An employee not realizing plaintiff was on the lift, raised it. Plaintiff didn't realize he was in the air, stepped back, and fell.

The Court here found that plaintiff voluntarily placed himself in a hazardous situation by being on the lift. This should invoke AOR. However, because AOR is not an absolute defense, the shop still had a duty of care. The shop's duty was to make sure no one was on the lift before it was raised. It knew that plaintiff was assisting with the cleanup of the car. It knew that he was around the lift. The shop's failed to make sure all was clear before raising the lift.

Now let's make one thing clear. AOR also applies to damages. It will be argued by the defendant's that plaintiff should be awarded less for his injuries because he voluntarily placed himself upon the lift. This argument is a winner. But once the conversation is about how much money an injured person is awarded as opposed to if a injured person is going to be awarded money, the injured person is in a good position.

Wednesday, June 10, 2009

Negligent Supervision Part 2

Last week I blogged about the high standard a litigant must meet in order to successfully bring a negligent supervision suit against a school. As luck would have it, the NY Law Journal just published an example of a case that did meet that high standard.


In Thacker v. City of New York, plaintiff brought suit after she was assaulted by another student. While going down a hallway during an extracurricular activity, another student pushed the plaintiff, causing her to fall. As a result of the shove, the plaintiff suffered injuries to her knee. A student pushing another is a classic example of a an impulsive, unanticipated act for which a school is not held responsible.


An examination of Thacker's facts reveals why it was allowed to go to trial. The assaulting student had a history of disciplinary problems. At the time of the assault, the offending student was suspended from school but allowed to attend the extracurricular activity.

Not only did the offending student have a history of problems in general, but he had a history of run ins with the plaintiff. The offending student was once disciplined for calling the plaintiff a "bitch." The offending student also threatened plaintiff with a bottle and threw a chair across the room when reprimanded by a teacher.


The Court found that the school’s personnel should have monitored the offending student closely in light of his past behavior. The school personnel should have been extra vigilant considering that the plaintiff was in close proximity to the offending student.

The Court also found that the offending student’s behavior should have been anticipated because the school personnel created a situation where such a shove was foreseeable. During the extracurricular activity, a teacher announced that there was pizza in another room. Due to the limited quantity, the pizza was first come first serve. This "first come first serve" situation created a climate where students would run, jostle, compete, and push to get pizza. It would be foreseeable that the offending student would get carried away and get physical with others. It is further foreseeable that the offending student would get physical with someone he has had problems with in the past, such as plaintiff.


All these factors led the Court to conclude that the push given to plaintiff was not an unanticipated, impulsive, spontaneous act. As such, plaintiff was allowed to bring her case before a jury. I bring up this case to show that while negligent supervision cases are difficult, they are not impossible to bring, given the appropriate circumstances.

-Matthew Lombard, Associate Attorney

Wednesday, June 3, 2009

Negligent Supervision claims against schools

First off let me apologize for not updating the Tolmage Peskin blog last week. Sometimes our clients' needs leaves us no time to post.

I came across a decision in today's NY Law Journal, TZ v. City of New York, in which a female student sued her school after being sexually assaulted in class. The teacher was present in the class, but failed to notice, prevent, or stop the assault. In an unusual turn, the only claim against the school upheld by the Court and preserved for trial was the negligent supervision claim.

This is worthy of note because negligent supervision claims are difficult to win. You have to prove: (1) that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; or in other words that the third party's (usually another student) conduct could reasonably have been anticipated AND (2) that the conduct was of sufficient nature and duration such that school personnel could actually have stopped it.

What does this mean? Examples help. A school bus driver was not responsible for an assault right outside his bus. In that case, the bus driver had no notice that a fight was about to ensue. Even if he did, the Court ruled there was no way he would have been able to get out of his seat in time to break things up before the plaintiff was injured. In another example, a teacher was not responsible for a student’s injury when the student fell from a hay ride. The Court ruled that the teacher would have had no way to know a bump was coming up and even if she did, would have had no ability to grab the student to prevent the fall. A third example: a school was not responsible for an assault in a hallway because the assaulting student had no history of violent behavior (so the school wasn’t on notice). Even if the school was on notice, the assault was spontaneous lacking a preceding argument or buildup; a teacher in the hallway could never had reached the students in time to prevent the punches.

Lets contrast these losing cases with TZ. In TZ, there had been a several prior sexual assaults in the school. As such, the school was on notice that this type of behavior could and has occurred. Teachers should thus be on the lookout. Also the assault was in a classroom, all the teacher had to do was look up at the group of kids around plaintiff to know something was going on. The assault lasted somewhere between 5-7 minutes. The Court ruled that this was enough time for the teacher to go to that part of the classroom and stop the assault.
What does this mean? It means that if your child was randomly hit in the hallway or at recess, you probably don’t have a case against the school (you of course have a claim against the assaulting student). You really have to prove that the school knew the assaulting student had a history of violence or that the assaulting student was harassing/bullying your child. You also really have to prove that school personnel would have been in a position to stop the assault when it did occur. This high standard protects schools from law suits stemming from most types of school ground assaults.

Tolmage Peskin knows that with a negligent supervision case against a school, the devil is in the details. It is the sort of case that can be won given the right circumstances. Contacting a lawyer to go over the details and circumstances of your potential case is truly the only way to know whether you can bring negligent supervision claim.

-Matthew Lombardi, Associate Attorney