Central New York Injury Lawyer Blog

Yesterday 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 Toll Free 1-866-698-8169

Kids have a known propensity to fool around, sometimes dangerously. Some kids go beyond mere fooling around, and bully or hit other kids. All these childish behaviors are dangerous, which is why God invented adults. Yes, we adults were put here on earth to keep kids from killing and maiming each other! (Unfortunately, some adults are like children, but that's another story. . . )

When you, as a parent, turn your sweet little Johnny over to the school district to receive his education, you also hand over to the school, to a certain degree, parental responsibilities. The school, in the eyes of the law, steps into the shoes of a parent, which means the school has a duty to provide proper supervision and control of your child and all others. If the school does not properly supervise its students, the school district can be sued and held liable for the harm caused.

But not all harm that befalls your child at the hands of other kids at school can, in the eyes of the law, be blamed on the school. The school is not an insurer of your child's safety. The school must act responsibly in fashioning sound safety rules, and in supervising its students, and it must ensure that the rules are being implemented by teachers and other staff. But it cannot prevent all injuries caused by other kids, especially unexpected and unforeseeable injuries.

What kind of classmate-caused injuries can you bring a New York school injury case against the school district for? Here are some examples: If a teacher or aid leaves a group of students unsupervised for a period of time, and the students engage in horseplay, or a fight breaks out during that unsupervised period of time, the school might, depending on the circumstances, be held liable for failing to provide adequate supervision. Or if a child has a history of assaulting other kids at school, and the school does not properly discipline or control him, and he then hurts another child, the school district may be held liable. Or if a group of students is allowed to engage in dangerous horseplay, and an accident causes injury to a child, the school district may be held liable for negligent supervision.

On the other hand, if a student suddenly, spontaneously, and without warning, does some foolish act, or takes a swing at another kid, and an injury results, the school probably can't be held liable. That's because the law recognizes that no amount of supervision can prevent sudden, unexpected, spontaneous acts of violence or horseplay.

The legal analysis of whether a school district can be held liable for injuries caused by other kids at school is actually a very complex one. Many factors come into play. If your child is injured by another child at school, call an experienced New York school accident lawyer to find out whether you can hold the school liable.

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 Toll Free 1-866-698-8169

I love the New York Times. Read it every day. That doesn't mean I always agree with it. And here's a great example.

A recent article by John Tierny explains that some playground "researchers" question the value of safety-first playgrounds. The researchers claim that, while it is "debatable" whether modern safety-minded playgrounds protect children from injuries, they hurt children by "stunting emotional development." These academics believe that taking "risks", such as the risk of falling from heights, is an important part of developing a healthy psyche. According to one of these head-in-the-clouds academics- a professor of Psychology - we should bring back the days of sky-high slides and jungle gyms, and see-saws too, because, while falls are common, "these rarely cause permanent damage", and getting rid of those risks makes playgrounds boring and deprives kids of the opportunity to grow emotionally.

No offense Professor, but this sounds like bull_ _ _ _. And I have to wonder whether your research was funded by municipal insurers. Where's your proof? The article doesn't say.

Here's the truth about modern playgrounds: Modern, shorter equipment and enclosed climbing zones have prevented countless falls. Soft rubber or woodchip landing zones, which have replaced skull-fracturing pavement, have made the fewer injuries there are much less severe. Scrapping traditional seesaws, spinning devices, and too-tall slides and jungle gyms have saved young lives. Well-reasoned federal guidelines and modern playground safety standards set by manufacturers have kept the fun in playgrounds while reducing the tragedies, heartaches and loss.

And yes, you can thank us New York personal injury playground lawyers for that. We forced these changes by making playground owners --- mostly schools and municipal governments - compensate our clients for their dangerously designed equipment. Personal injury playground lawyers all over the U.S. have raised the bar for safety, but New York personal injury lawyers have led the charge.

Personal injury lawyers save lives. Next time you are at a playground with your kids, admire the safe design, the soft surface, the enclosed climbing area and the shorter climbs. Then raise your arms to the sky and say, "thank you New York personal injury lawyers!". And, god forbid, if your child is injured, call me and we will look into whether an unsafe design feature was a factor in causing it.

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 Toll Free 1-866-698-8169

I hate reeling off statistics to make a point, but I couldn't resist these: Children 15 and younger account for 22% of all pedestrians injured in traffic crashes. And 38% of child pedestrian fatalities occur in crashes between 3 and 7 p.m (after school gets out).

So what's my point? School's back in session. When you are out driving, watch out for kids, especially in the hours before school (7:00 to 8:00 a.m. or so) and after school (3:00 to 7:00 p.m. or so).

Unfortunately, since I handle New York pedestrian injury and death cases, I know too well, up close, the devastation that car-on-child collisions cause. This past year I had to represent the family of a 4-year old killed by a car. No amount of money could ever replace that loss, of course. It is indescribably tough on the family of the dead child, but it isn't a cakewalk for the at-fault motorist either. Imagine the life-long guilt, shame, and remorse!

If I never handle another dead pedestrian child case, I will still have handled one too many. Don't let car-on-pedestrian-child accidents happen to you or your child. As a driver, watch out for kids, especially in the pre- and after school hours. And if you are a parent, go over safe crossing rules with your child as part of your new school year routine.

Finally, for a great review of school bus safety rules, review the recent blog post by fellow New York pedestrian injury lawyer Adam Gee.

In 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.