In Tsai v. Duh, the plaintiff-student was struck by a vehicle that was passing in front of his school during the school's lunch break. Following depositions, the defendants moved to dismiss the child's personal injury action on different grounds. The driver of the vehicle that struck the plaintiff-pedestrian asserted that the child darted out into the roadway, and afforded him no time to avoid colliding with the plaintiff. The City of New York, on the other hand, claimed that since the accident technically occurred off of school property, they could not be held liable.
In responding to the City's papers, the plaintiff's attorneys asserted a new theory that they never before raised in their initial notice of claim or their complaint: since the child's school had a "closed lunch" policy, the school had a "special duty" to protect the child and prevent the child from leaving the school during this time, and they failed to fulfill this responsibility.
While even a cursory reading of this decision makes clear that the Court was inclined to dismiss this lawsuit, the Court's language in rejecting this claim should be taken to heart:
"This theory is not contained in the plaintiff's notice of claim or complaint. Causes of action for which a notice of claim is required which are not listed in the plaintiff's original notice of claim may not be interposed."
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