Proving that a school was negligent under New York law is tough.

And a case that just decided at the appellate level last week, on November 12, highlights one of the primary challenges in some of these cases, namely, demonstrating that the school knew or should have known of the specific danger involved, yet failed to remedy the condition in a timely way.

In the Bronx county claim of Koerner v. City of New York, the plaintiff student claimed that he suffered a serious infection to his eye due to being exposed to a particularly nasty fungus at the school, Candida Dubliniensis. As the appellate court pointed out, however, there were two fundamental (and fatal) problems with his claim:

"[A] general awareness that a dangerous condition may be present is legally insufficient to charge a defendant with constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]). Thus, awareness of unsanitary conditions at the school was insufficient evidence that defendant was on notice of the presence of the fungal pathogen Candida Dubliniensis, the fungus that allegedly caused plaintiff's eye infection (see Litwack v Plaza Realty Invs., Inc., 40 AD3d 250 [1st Dept 2007], affd 11 NY3d 820 [2008]).

Further, plaintiff failed to proffer any evidence that the fungus existed at the school at all, other than speculation based on plaintiff's unusual infection (see e.g. Cleghorne v City of New York, 99 AD3d 443 [1st Dept 2012])."

In other words, aside from the fact that the plaintiff couldn't show through competent evidence that the particular fungus causing his eye infection was contracted at schoo, he also couldn't prove that the school knew or should have known that this particular fungus was present at the school.

Assuming the appellate division's rendition of the plaintiff's evidentiary shortcomings, is accurate, I can't help but wonder why the plaintiff's attorney brought this case in the first instance.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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