A recent - and sad - story out of Alabama, where a young child with cerebral palsy returned home crying in pain, leading the child's mother to discover that her son's leg had been broken during the school day, gives rise to the following important question:
What, if anything, can you do if your child is injured while at school or daycare, but no one witnesses how the injury occurred? Is there any way that your child can recover damages (including ongoing medical care that is necessitated by - and resulting from - the injury)?
Although in most circumstances (at least under New York law), the answer will be no, nothing realistically can be done for this child to be fairly compensated, there is an exception to this general rule.
It's where the sole explanation for the accident is the school's negligence (or, in legal terms, "res ipsa loquitur").
As noted in "Another Way to Prove Your Negligence Case Under NY Law," New York's courts have laid down strict prerequisites before this doctrine can be applied:
  • "the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;
  • it must be caused by an agency or instrumentality within the exclusive control of the defendant; and,
  • it must not have been due to any voluntary action or contribution on the part of the plaintiff."
In the case of very small, or severely disabled children, this doctrine is more readily applicable than in other circumstances, because such children will more easily satisfy the first and third categories than the general populace. And the reason for this is straightforward: these classes of claimants will often be incapable of meaningfully contributing to the happening of an accident (such as a passenger in a car), and are the means for the accident will often be in the exclusive control of their caretaker(s).
The toughest criteria to meet will then remain #1, which is proving that the accident is of a kind that would not normally occur unless someone was negligent.
Jonathan Cooper
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Non-Compete, Trade Secret, Unfair Competition and School Negligence Lawyer