Central New York Injury Lawyer Blog

Articles Posted in Negligent Supervision

drunk teen.jpgFraternity hazing stories are legendary for their outrageous silliness and, unfortunately, their sometimes tragic outcomes. Pledges are sometimes required to consume large quantities of alcohol, do embarrassing and humiliating things in public, face harsh deprivations, weather inclemency, or paddle beatings.

This topic is of interest to me now that my own kid is off to college this year. And he wants to join a fraternity. Am I worried about hazing? You bet.

I don’t have too look far to find stories that make me lose sleep. Cornell University, right down the road from my office in Auburn, New York, has had its share of hazing tragedies. In 2011, for example, some pledges were blindfolded and bound at the wrists and ankles. They were then driven to a town house somewhere on campus where they were drilled with Fraternity’s history trivia questions. A wrong answer triggered forced shots of vodka. One of the pledges – who seems to have been a poor Fraternity historian — passed out, was loaded into the back seat of a car, and brought back to the Frat house where he was dumped on a couch to “sleep it off”. The next morning the cleaning crew found him dead, choked on his own vomit.

I could tell dozens of similar stories. For example, in one high-profile case, which was again recently in the news for the criminal sentencing of one of the hazers, a drum major in Florida A&M’s Marching 100 was beaten to death during a hazing on the band bus.

Hazing is common on American campuses. Several studies have found that approximately 55 percent of students who join fraternities, sororities, sports teams or other student groups experience hazing. Injury and death from hazing are not an every day experience, but they are not uncommon either. There have been over hazing 115 deaths since 1970.

Why do fraternities haze? As long as there have been human societies, there have been initiation rites. Something deep inside our human psych seems to require groups to impose suffering on would-be members. Somehow, the collective suffering of the newbies acts as group bonding glue.

The Greek system is part of college history. Like all histories, it is brimming with the good, the bad and the ugly. While Greek life has served as fertile ground for friendship and leadership development, it has historically also fostered racism, sexism and violence.

And of course hazing incidents spur personal injury and wrongful death lawsuits. Fraternity hazing cases pose complex legal hurdles. There is usually a broad net of blame to cast. The college is often faulted for turning a blind eye to fraternity excesses. The national fraternity chapters are signaled out for failing to properly supervise their local chapters. The fraternity brothers involved in the hazing are often held not only liable in civil lawsuits, but are tried criminally on manslaughter or criminal negligence charges. And the finger of blame points toward the victim as well for having voluntarily participated in the hazing activities.

My kid is dead-set on joining a fraternity. All I can do is tell him my concerns, and hope and pray he does the right thing, both as a pledge and later as a fraternity brother. It takes a lot of self-confidence to resist peer pressure when pledging activities cross that fine line between fun and danger. May he make good, lifelong friends and memories. But may he also make safe, smart decisions.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

wrestlers.jpgA new case demonstrates how tough it is to sue for kids’ sports injuries.

Normally a participant in a sport – even a child – assumes the risks inherent in the sport and therefore can’t sue to recover for injuries. There are some exceptions to the rule. For example, You don’t “assume the risk” of a danger you would not normally expect to find in the sport (example: a puddle on an indoor basketball court).

So here’s a summary of that new case: In Cvijenovich v Beacon Kids Wrestling Club, a child wrestler’s opponent suddenly did “an illegal or unreasonably dangerous wrestling move” causing him injury. An illegal or dangerous move like this is not covered by the “assumption of risk” doctrine because no one joins a wrestling club with the expectation that illegal, dangerous moves will be used. Participants assume the risk only of legal moves.

So the kid’s parents sued the wrestling club on behalf of their injured child, alleging that the Club failed to provide an adequately trained or certified referee to supervise the wrestling match. After all, the ref was just a high school wrestler. But the Appellate Court held that the illegal move happened so fast that no amount of supervision or training of the ref would have prevented it. In other words, even if the ref had been the best trained and most highly certified ref in the world, there is no way he could have expected or stopped the illegal move from happening. In fact, right after the move, the ref disqualified the wrestler and gave the match to his injured opponent. What else could he have done? Thus, the alleged “negligence” of the Club in failing to hire a well-trained ref did not cause the injury.

I suppose the kid’s parents could sue the other wrestler, but the problem there is coverage. A 10-year old wrestler is unlikely to have assets, his parents can’t normally be held liable for his actions, and homeowner’s insurance is unlikely to cover sports-related negligence.

At Michaels & Smolak, we have successfully brought sports injury cases, but the facts have to be just right for us to even consider such a case. The only way to find out whether your child’s case is likely to succeed is to call us to find out!

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

playground.jpgThe Syracuse Post Standard published a story today titled, “How the city of Syracuse hired a registered sex offender“. When I first glanced at the title, I thought — “hmm, there could be some liability here”. I was thinking that perhaps the City had unwittingly hired a registered sex offender to work around kids and the guy had raped or abused one of them. But that’s not what happened.

Here’s what did happen. Three years after the City of Syracuse hired a garbage collector, he was indicted for sodomizing a boy (not on-the-job, though). When the City hired the guy, the City had not checked his criminal history, nor New York’s sex offender registry. If the City had done so , it would have turned up several criminal convictions, including one for sodomizing a 15-year old boy, which is in fact just about the same thing he is again being accused of.

The City makes no apologies, nor should it, in my opinion. The City’s policy, which makes sense to me, is to perform criminal background and sex registry checks only for sensitive job hiring positions, like camp counselors, summer park staff, firefighters, police, etc. In fact, for jobs like garbage collecting, the City often knowingly hires ex-cons. The City feels, and I agree, that someone has to give these guys a way to make a living, and a second chance in life. Hiring ex-cons keeps them off the Syracuse “streets” where, without a job or a penny in their pocket, they are likely to commit more crimes.

So why did the City fire this guy after this latest allegation? (Remember, he hasn’t been convicted of the latest charge, and is innocent until proven guilty). Because he lied on his job application three years early, that’s why. Well, he didn’t actually lie. He just left blank the part where they ask for his “criminal convictions”. The City says that was fraudulent because he did so to hide his background. But the irony is that, if he had answered truthfully, he probably would have been hired anyway. And if he had told the truth, he probably would not be getting fired now, and least not until (and if) he is convicted.

So when would the City be liable for negligent hiring of a convicted child abuser or sex offender? Well, if this same guy had been hired to work in a city park frequented by children, and ended up raping some kid “on the job”, or whom he met at the park, Syracuse New York personal injury lawyers would be standing in line for a chance to represent the child victim and his parents in a negligent hiring case against the City. But thankfully, that’s not what happened here.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Thumbnail image for sad teen silouette.jpgYesterday I blogged about whether a “governmental immunity ” or “sovereign immunity” defense would bar a claim by child sex abuse victims against the State University of New York (“SUNY”) if something like what happened at Penn State (State university football coach sexually abuses children on campus) happened in New York at SUNY Geneseo, or SUNY Albany, or SUNY Cortland, etc. I concluded that those defenses generally would not be applicable in New York. But unfortunately, unlike in Pennsylvania, another defense would likely prevail in New York: The statute of limitations.

Pennsylvania, unlike New York, has extended the statute of limitations for child sexual abuse victims until they reach age 30. From news reports, it seems that all the Penn State child sexual abuse victims are still under 30 years old. So they can, and probably will, be able to sue Penn State for compensation, though on the very same facts, they would not be able to do so in New York
In New York, there is no specific statute of limitations for civil cases based on child sexual abuse claims. The child victim must rely instead on traditional statutes of limitations for assault (by the perpetrator) and negligence (by the employer of the perpetrator or owner of the building where it happened). In New York, the statute of limitations for assault is one year, and for negligence it is three years.

But a child victim’s statute of limitations is “tolled” (doesn’t start to run) until he or she is 18 years old. That means that the statute of limitations against the perpetrator of the sexual abuse generally expires on the victim’s 19th birthday, and against the employer/property owner, on the victim’s 21st birthday.

But there are other — and longer — statutes of limitations that might apply. Under CPLR 213-b(2), if the sexual abuser is convicted of a criminal offense, the victim gets 10 years to sue him starting from the date of the crime. But this statute of limitations applies only to a lawsuit against the rapist/abuser who was convicted of the crime, not a lawsuit against his employer or others who may have negligently allowed the rape/abuse to occur. Thus, in a Penn State-like situation, the sexually abused child could not use this statute of limitations to extend his time to sue the State University.

What about CPLR 215(8)? That Statute gives the child victim of sexual assault in New York an additional five-year window to sue the perpetrator from the date the criminal action against the perpetrator terminates. But can a child sex abuse victim use this statute to extend his statute of limitations for suing not only the perpetrator, but also the negligent employer or premises owner or other culpable people who are not defendants in the criminal case? The courts in New York are divided on this issue, so this is far from a sure bet.

The bottom line is that most victims of child abuse in New York would probably be barred from suing SUNY (i.e., State Universities like Penn State) unless they did so before they turned 21. This is extremely unfair, because, as any psychologist will tell you, and as experience confirms, most victims of childhood sexual assault don’t come to terms with what happened to them, or consider going to the police about it or making a claim for compensation, until they are closer to thirty years old. From what I have read, the victims of child sexual abuse at Penn State are now all over 21 years old, but younger than 30. Thus, their claims would likely be barred in New York, but not in Pennsylvania.

Why doesn’t New York have a more fair law, like Pennsylvania’s, that protects the rights of victims of child sexual abuse? Glad you asked. In 2009, the New York State Legislature considered a law that would have liberalized the statutes of limitations for child sex abuse cases. The “Child Victims Act” would have, among other things, extended the statute of limitations for filing civil suits for child sexual abuse to 10 years after a victim turns 18 (i.e., to age 28). But a very strong Catholic Church lobby defeated the bill.

There are some “loopholes” New York plaintiffs’ lawyers might try to latch onto to avoid New York’s harsh statute of limitations for child sexual abuse claims, such as “equitable estoppel”. But those are very difficult arguments to make. For example, with an “equitable estoppel” claim, the once-child, now adult, victim must show that a defendant such as Penn State did more than merely cover up a crime; he must show that the defendant engaged in fraud, deception or misrepresentations that induced him to refrain from filing a timely action. This is almost never the case — rather, usually the victim’s own shame induced him to refrain from filing a timely action.

Maybe the Penn State drama will induce New York law makers to again attempt reforming New York’s antiquated child sexual abuse law. Let’s hope so.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

sad teen silouette.jpgLike everyone else, I have been following the “Happy Valley” Penn State child sexual assault scandal with disgust, awe, shock and dismay. But unlike everyone else, I am also thinking, as I read, who I would sue, for how much, and under what legal theories.

Although I am admitted to practice law in Pennsylvania, I have never handled a case there. My practice is limited to New York personal injury cases, and particularly to cases in Central and Western New York State. So I was surprised to read that some PA lawyers saw obstacles under Pennsylvania law to a lawsuit against Penn State because of the doctrine of “sovereign immunity”. Penn State would, of course, be the principle target of my lawsuit because of its deep pockets. The lawsuits brought against the rapist/sexual predator, Sandusky, or any of the individual coaches, such as Joe Paterno, would quickly deplete all their assets, leaving the plaintiffs under-compensated. There are at least eight victims, and probably a lot more will be stepping forward, which in my mind equates to many, many millions of dollars in lawsuit recovery.

In New York, a suit against a State University for something like this would not trigger a viable sovereign or governmental immunity defense. That’s because New York law distinguishes between the State’s traditional governmental role (such as providing police protection) and non-traditional roles the State has assumed over time, such as owning and running a university. Generally, the State can raise the governmental immunity defense only against tort lawsuits for the former, not the latter.

If what happened at Penn State happened at one of New York’s SUNY colleges, the only possible governmental immunity defense in New York would, in my opinion, be against allegations the campus police should have intervened. Since police protection is a traditional governmental function, a governmental immunity defense against that cause of action might prevail. But so many other causes of action abound for holding the State college or university liable here: Negligent hiring, supervision and retention of the football coaches; civil conspiracy; premises liability (knowingly allowing a dangerous condition to exist on their premises). And the government immunity defense would not bar these causes of action at all.

The problem in New York would not be governmental or sovereign immunity. Unlike in Pennsylvania, the problem would be the statute of limitations. I’ll be discussing that tomorrow, so stay tuned . . .!

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

bullied.jpgIn New York State, schools are legally responsible for preventing their students, at least while they are at school, from harming each other. This includes preventing school injuries caused by horseplay and avoidable accidents, but also intentional harm students might inflict on each other through assaults, harassment or bullying. School teachers and administrators cannot stand idly by while some students assault, harass, threaten, taunt or bully others. The school has a legal duty to take reasonable measures to make its school safe for its students. When it comes to bullying, if a school does not have rules in place to deal with such behavior, or if it fails to follow these rules, the student-victim can bring a lawsuit against the school for money damages under a legal theory of “negligent supervision”.

School bullying was in the news a lot this week. The saddest story, and the one to catch all the national news, was about an Irish immigrant girl at a school in Massachusetts who was so relentlessly bullied that it drove her to commit suicide. The girl had been the recipient of a barrage of assaults, threats, and taunting for months. The local district attorney has charged 9 fellow students with crimes that led to the suicide, including stalking, criminal harassment and violation of civil rights.

There is plenty of blame blame to go around, though, and certainly the school deserves a lot of it. The school knew about the bullying. A psychologist says she consulted with school administrators months before the 15-year-old hanged herself. But they did nothing to stop the bullying. Watch for a lawsuit from the dead girl’s parents — I’ll bet it’s in the works, as well it should be.

Another news story about bullying this week hit closer to home. The Utica Observer reports that an upstate New York gay teenager, who was relentlessly bullied by classmates for being gay, settled his lawsuit against his school, the Mohawk Central School District, this week. The 15-year old claims that school officials did nothing to stop or prevent the bullies from taunting and harassing him daily simply because he was “different”.

As part of the settlement, the district agreed to better protect students from harassment, including by paying for additional anti-bullying training for its staff. The school also agreed to a $50,000 payment to the boy’s family to reimburse them for counseling services.

As I always say, despite popular myths to the contrary, lawsuits are good. They change behavior for the better. Would this Mohawk Central School District have learned its lesson without this New York school liability lawsuit being filed against it? I think not.

IMG_0628.JPGYesterday, as I have done just about every Wednesday this winter (and for the past few winters), I took a van full of Boys & Girls Club kids to the Geneva, New York municipal ice rink for a skate. I pick them up at the Boys & Girls Club of Geneva at 6:30, we skate till 8:15, and then I drive them home. I finish up about 9:00. I can pack about 11 kids in the large van. The kids, ages 5 through about 11, love it. These are kids who otherwise would never get a chance to skate. Most of them don’t have transportation to the rink. When Spring comes along, I take the same kids to the YMCA swimming pool. Otherwise, they wouldn’t learn to swim.

Here’s my law blog question for the day: What is my liability exposure as a volunteer? Does the law cut me any slack for being a good guy, or am I just as liable as anyone else if I accidently crash the van, or fail to properly supervise the kids, and cause them to get injured? If some of these kids and their parents were to bring a New York personal injury lawsuit against me for negligent driving or negligent supervision, what would happen to me?

I hate to admit it, but I am exposing myself to a lawsuit. The law in New York cuts me no slack at all. If I voluntarily agree to take these kids out and I negligently allow harm to befall them, their personal injury lawsuits against me will be valid. The fact that I was trying to give these kids a better life won’t count for squat!

So how do I protect myself? Two ways: First, I try to be very careful. I drive carefully, and when I am with them on the ice or at the pool, I try to watch them carefully. Second, I buy lots of insurance, just in case.

Sometimes it can be scary, though. On the trip home, some of the kids can get a little rowdy. I am never 100% sure they are keeping their seat belts on. And when I drop them off at their home, I insist on watching them actually get inside there homes before I drive off because many of them live in “iffy” neighborhoods.

The scariest thing that happened was two years ago. A 6 year-old girl, named Jacqui, who had never swum before, jumped right into the deep end of the pool. She then began flailing around, going under, and taking in water. One of the life guards was able to pull her out. When she finally spit out enough water, and calmed down enough for me to talk to her, I asked her, “Jacqui, why did you jump into the deep end if you did not know how to swim”? Her answer: “But Mr. Bersani, you don’t understand, I thought I DID know how to swim. I was so excited about going swimming for my first time that I had been practicing all week – IN MY MOTHER’S BED”.

My resonse: “The same mother who would have sued me if you drown, Jacqui!”