In nearby Tioga County, NY, a 10-year-old boy was recently hospitalized after his math teacher caused this injury (see photo) to the boy’s shoulder. The kid’s mom posted the photo on her Facebook page. Mom and child have served a “notice of claim”, which is the precursor to a lawsuit, on the School District. The notice of claim alleges that the boy was working on a math question, when teacher overheard him say, “c’mon.” The teacher then confronted the boy, dragged and lifted the boy by his right arm from his seat, and pushed him out of the classroom. He has apparently suffered a separation of his clavicle bone. Ouch!
Meanwhile, in another part of New York State — down in Long Island — the mother of a middle school student received a call from her 12-year-old daughter complaining that her teacher had “put her hands on me.” The outraged mother raced to school and somehow got past security (that should not have happened) and into the school. She then made a beeline to the teacher’s classroom, attacked her, put her in a headlock, and then threw her to the floor where the teacher lost consciousness. That’s her lying on the floor in the photo. (It’s all captured on surveillance tape). But that’s not all. While lying on the ground unconscious, the teacher was beaten by several students, including the mother’s 14-year-old niece. Talk about being an unpopular teacher!
So why am I blogging about these two unrelated events? Well, first, they are somewhat related in that they suggest there must be something in New York State’s drinking water making people crazy at school.
But I also am blogging to show you how different the two suits will be. The boy suing the teacher and school district for the shoulder injury has to show only that the teacher used unnecessary and careless force in removing him from the classroom. But if the beat-up teacher wants to sue someone for her injuries, she has got some big hurdles to overcome. Let’s talk about that.
Suing the out-of-control mother and the student assailants will likely be a worthless exercise because none of them are likely to have any assets to go after and, even if they have liability insurance in their homeowners’ policies, it won’t cover assaults.
Next, the teacher may consider a suit against the school district for negligence in allowing the enraged mother to get past the security system. That sure was a big breach of security! But here the teacher may run up against a workers’ compensation defense. You generally can’t sue your employer if your employer provides workers’ compensation. But in downstate NY many teachers have collective bargaining agreements in which workers’ compensation does not bar suit against the employer.
Even if there is no workers’ comp bar, however, the case will be nearly impossible to win. That’s because her suit is likely to be barred by the “governmental function immunity” defense. Since a school district is considered a governmental entity, most suits against it brought by anyone except a student are subject to the governmental immunity defense. To get past the defense, the teacher must show – among other things – that the school district had a “special duty” to her beyond the duty it had generally to other teachers and visitors at the school to protect them from attacks. That means the teacher will have to show – among other things – that the school made some kind of (at least tacit) promise directly to her to protect her from this kind of assault, and that she relied on that promise to let her guard down, which resulted in her allowing herself to be put in a vulnerable position where she was assaulted. All that is nearly impossible to prove.
But students injured at school don’t have to worry about this defense because the school has assumed a duty to the students by virtue of the doctrine of in loco parentis, which in Latin means “in the place of a parent”. It means the school district has legal responsibility for the well-being of the student while the student is in its custody, just as the parent does at home. There is no governmental immunity. The school district will be liable for its teacher dragging the student by the arm, thus dislocating or fracturing his clavicle, regardless of whether the student can establish any “special duty”. The duty from the school district to the child stems from the in loco parentis doctrine, not from any “special duty”.
I know, it’s all very complicated. That’s why you always need to consult with a lawyer experienced in suing school districts when someone you love – or you – are injured on school premises. And you need to get a lawyer quickly. Generally, you have to serve a “notice of claim” on the school district within 90 days of the incident to protect your rights. That’s not a lot of time!
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central & Syracuse NY School Injury Lawyers
Michaels & Smolak, P.C.