Since the new school year is set to begin just two days from now, I thought it might be prudent to review some of the more common mistakes that parents make when a school fails to undertake the proper measures to protect our children, and as a result one of those children is, G-d forbid, seriously injured. (For additional information on the elements of typical school negligence case in New York, please see "How to Prove Your School Negligence Case Under New York Law").
So, without further ado, here's the list:
5 Mistakes That Can Ruin an Otherwise Valid School Injury Claim
(1) Failing to Document the Condition That Caused the Injury. If your child has been injured by a dangerous condition that was either created by the school, or went unattended for a lengthy period of time (in legalese, this is referred to as having "notice" of the defective condition), the school - as it should do - will likely try to correct the condition shortly after the accident. Consequently, your window within which to document for a jury what the condition actually looked like at the time of the accident may be a very short one indeed.
(2) Failing to Get the Necessary Medical Attention. While getting the necessary medical attention for your child should be done regardless of whether you intend to file a claim against the school or not, it also has implications for your child's potential claim. Simply put, if you can't demonstrate the severity of the injuries that your child has, the value of your child's potential claim is diminished, if not eliminated entirely. To be clear, this will require you to make sure that your child is evaluated by an appropriate medical professional with expertise in the relevant discipline, e.g., an orthopaedist for an orthopaedic injury.
(3) Failing to Document the Extent of the Injuries. In truth, this should really be (2)(a). Part and parcel of getting appropriate medical attention also means documenting the extent of the injuries so that a jury down the line can appreciate how severe these injuries were immediately post-accident. This is particularly important because in the vast majority of cases (and hopefully, in yours as well), the injured child is in far better shape at the time of trial than they were right after they got hurt.
(4) Failing to Document Witness Accounts. I cannot overemphasize the importance of this point. Within the days following an injury-producing accident at school, just as in any accident, the memory of the accident remains fresh in people's minds. After time has passed, their memories of the accident, like all of ours, tend to fade. At the risk of stating the obvious, a non-party witness account of the accident will inherently have greater credibility than the version of events related by the plaintiff himself. Therefore (and assuming the non-party witnesses are coooperative), getting a written statement (a task that is typically - and should be - performed by a school negligence attorney or an investigator) shortly post-accident is critical to helping prove your case.
(5) Failing to File Your Claim in a Timely Manner. The vast majority of schools across New York are public schools, and the time within which to bring a claim against them is extremely limited, as a Notice of Claim setting forth the basic elements of the lawsuit must be served upon the school (or, in many cases, the school district or municipality) within 90 days of the incident. While this particular deadline can occasionally be extended, it is by no means guaranteed.