A decision by a New York County trial judge that just came down on May 29, 2014 in a case involving an assault that took place at a New York City school serves as an important reminder about the biggest – and perhaps most easily avoidable – mistake that can mean the difference between a great case where a student can recover for the damages he or she sustained due to the school’s failure to prevent the assault, and a case that stands a strong chance of being dismissed.
By now, you should be wondering,
“What can possibly make such a difference that it might prove decisive as to whether my child wins or loses their case?”
Technology has made the nature of potentially available evidence markedly different over the last number of years. In the school negligence context, this means that the first place you should look is to find out if the school has any security videotapes showing what happened.
Here’s the tricky part:
You have to move VERY quickly on this, because schools will often tape over existing videotapes unless a specific demand is made that they preserve the video shortly after the occurrence.
Here’s why the New York County trial court’s decision in Rodriguez v. City of New York drives this point home.
In that case, the school lost the videotape after a demand had been made for it. And even though there were other ways for the plaintiff to prove their school assault case, the court still sanctioned the defendant, and stated as follows:
The video is neither the only nor most critical proof in plaintiff’s case in chief, although it may have assisted plaintiff in proving the timing of the occurrence, and to some extent, the supervision of students during their departure from the school. Therefore, an adverse inference charge to be determined by the trial judge is appropriate here (see Strong v City of New York, supra at 24; Suazo v Linden Plaza Assoc., L.P., 102 AD3d 570 [1st Dept 2013]; Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248 [1st Dept 2011]).