Without a doubt, prevailing on a negligence claim against a school in New York - even when they've clearly falied to do a good job protecting our children while in their care - is a challenge. The purpose of this article is to inform New Yorkers about some of the most common ways that parents unwittingly ruin their children's cases - and, just as importantly - how to avoid those mistakes.
So, without further delay, here we go:
(1) Failing to document prior complaints regarding the same condition/issue - As noted in "How to Prove Your School Negligence Case Under New York Law," one of the most difficult things needed to establish a school's liability is that they either knew, or should have known about the dangerous condition/circumstance/threat, yet failed to address it appropriately in a timely manner. If you know about a dangerous condition, make sure the school receives written notice of it - beforehand (needless to say, doing so will often force the school to take corrective action whereas they otherwise might ignore it).
(2) Failing to document the defective conditions near the time of the accident - recalling the old maxim, "a picture is worth a thousand words" is relevant here. A jury can only appreciate how poorly a school maintained its grounds if it can visualize it. And it's not just pictures; sometimes it's measurements. Often, in the aftermath of an accident, a school (like any other entity) will rush to repair the defective condition before someone else gets hurt (or before anyone can garner evidence of the poor maintenance job they did pre-accident). And if the school did a poor job maintaining its equipment, you can be equally sure that their records regarding their equipment are lacking as well.
(3) Failing to document/photograph injuries - the same holds true for demonstrating how badly your child was hurt. Telling the jury about the severity of the injuries isn't the same as showing them.
(4) Failing to get witness information - as in any other garden-variety negligence case, gathering the contact information for witnesses to the occurrence shortly post-accident is critical. People move away and memories fade. Therefore, it's important to lock in who these people are, and memorialize their recollection of the accident (preferably with an investigator) as soon possible.
(5) Failing to get timely and appropriate medical care - leaving aside the issue that this should be done for a child in any event, this failure can also have negative consequences on a subsequent lawsuit, because it leads a jury to believe that the injuries must not have been that serious if it didn't demand or warrant immediate medical attention. Alternatively, it might lead a jury to conclude that the injuries were due to a cause other than the school's negligence.
(6) Failing to File a Timely Claim - this mistake may not only harm your child's case - it can prove absolutely fatal to the claim. When dealing with New York's public school system - whether inside or outside New York City, there is a requirement that claimants file a Notice of Claim setting forth the central allegations to the case within 90 days of the occurrence. While there are some extenuating circumstances where this deadline can be extended, the outside limit for doing so (even with court approval) is generally one year and 90 days post-accident. (For additional information on this topic, please see "The Most Critical Mistake to Avoid When Suing a New York Municipality").
