I empathize with the parents of this 12 year-old boy, who was taken from school via EMS to a hospital, where he was forced to undergo corrective surgery, including the insertion of a stabilizing plate in his femur after his leg was badly broken. I truly do.

And the worst part of it, as described by this boy's parents, is that the school has absolutely stonewalled them: The school has refused to provide any incident report, or any information as to how their son was injured. The parents have - correctly - stated "It is time for the Education Department to know they must put children first not the legal system."

Granted, this case occurred in Australia - a jurisdiction far different and distant from New York; but while the school hasn't complied with the family's request for answers, I suspect that without more, this case will likely suffer the same fate that it would in New York - dismissal.

Here's why:

It's the plaintiff's burden to prove that the school was negligent, and that the school's negligence was a substantial factor in causing his injuries.

Of course, there is a narrow exception to this rule, such as where the plaintiff can show that the accident could not have occurred absent the school's negligence, but this would be very hard to prove in a school negligence context. (For additional information on this exception, please see "How to Prove Your NY Injury Case When You Don't Know What Happened.")

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