Articles Posted in Manhattan

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A Manhattan contractor who owned a home improvement company obtained a contract to renovate a couple’s home. The man worked on the couple’s home: he was up on the roof supervising the repair of the roof when he slipped and fell. He hit his head and sustained a brain injury.

He filed a personal injury complaint against Workmen’s Compensation, against his own company and against the couple who owned the house he was renovating. In that personal injury case, trial was held to determine if the brain injury sustained by the contractor qualifies as a grave injury under the Workmen’s Compensation Law.

During the trial, the contractor adduced proof regarding the extent and nature of his brain injury. His medical experts testified that the contractor had cognitive dysfunction which permanently disabled him from doing any work. The insurance company provided its own expert who conducted a neuropsychological evaluation of the contractor. The expert of the insurance company found that the contractor’s brain injury was severe and traumatic such that he has lost the ability to make decisions required in daily life.

The contractor’s home improvement company was insured for Workmen’s Compensation by an insurance company. During the trial to determine the extent of the grave injury sustained by the contractor, the insurance company sent its lawyer who fully and knowingly participated in the trial even though it was not a party to the said personal injury action. The Queens insurance company was allowed to propound questions to the witnesses presented during the trial. At the end of the trial, the court declared that the contractor suffered a grave brain injury. The contractor was then given an award of damages amounting to about $6,500,000.00 which the couple and the home improvement company immediately paid and settled. The home improvement company and the owners of the house then seek reimbursement or contribution from the insurer of the home improvement company
The insurance company then filed a case where it seeks a judicial declaration that it is not bound by the findings during the personal injury proceedings that the contractor sustained a grave injury. The only question before the Court is whether or not the insurance company is not bound by the findings in the personal injury action that the contractor sustained a grave injury.

The Court held that in order for the insurance company to be held as bound by the findings in the personal injury case, there must be proof that it was a party to the personal injury case or at least privy with any of the parties in that case; the interests of the insurance company were represented during the trial; and the insurance company had a fair opportunity to fully participate in litigating the issue of the nature and extent of the contractor’s brain injury.

The extent and nature of the contractor’s brain injury were fully litigated in the personal injury action. Because the insurance company provided its own expert to examine the contractor, the insurance company is deemed to have been given a fair and full opportunity to be privy to the litigation. Because the insurance company was allowed to propound questions to the witnesses, it is inevitable to conclude that it was given the opportunity to litigate the issue.
For these reasons, the insurance company can no longer be allowed to re-litigate the issue of whether or not the contractor sustained a grave injury. This action for judicial declaration must be dismissed. The insurance company is estopped or barred from re-litigating this issue again.
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A report issued by the Institute of Medicine (IOM) in Long Island now states that if an appropriate dose of nutritional supplements is administered soon after an injury occurs, service members wounded on the battlefield have a much better outlook at recovering from a Traumatic Brain Injury (TBI). Nutrition apparently plays an even bigger role than previously though.

Commissioned by the Department of Defense (DoD), the report urges the military to make infusions, which contain calories and protein, a standard part of care in the immediate aftermath of a brain injury.

Accordingly, these findings also have implications in the civilian sector. “The investment the military makes will cross over into the civilian population for injuries suffered by those in car accidents, in motorbike accidents, by kids on soccer fields,” says the IOM panel chairman, professor emeritus of food science and human nutrition at the University of Illinois.

In both Iraq and Afghanistan, brain injuries are commonplace among service members. According to the Defense and Veterans Brain Injury Center, within the U.S. military as a whole, over 200,000 cases of TBI have been diagnosed since 2000. A Manhattan doctor found out that 2,124 of those cases were classified as severe.

The chairman says, “Across the board, the military is trying to understand how to set the stage for the recovery of these individuals.”

The DoD asked the IOM to review all scientific literature that linked nutrition to brain injury outcomes. The panel, an eclectic mix of food and nutrition specialists, neurologists, and other experts, has met several times in the last 12 months.

Their strong suggestions were seasoned with the knowledge that more information in the field is vital to complete understanding.

The panel reviewed many studies, all of which were younger than 20 years old research-wise, and their study revealed correlatively to them that infusions of calories and protein implemented within the first 24 hours of injury and continued in the following two weeks, significantly reduced inflammation in the brain and aided recovery.

Long-term consequences of the injection of nutrition were not studied.

Investigation is underway as to the possibility of avoiding injury altogether with the nutrition supplements.
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At the climax of last year’s fighting season, more than 300 U.S. troops received mild traumatic brain injuriesor concussions every month. Often those injuries resulted from exposure to a blast. Troops not killed or gravely wounded by blasts were often left stunned or even momentarily unconscious.

Concerned that many soldiers were suffering mild traumatic brain injuries or concussions, the military put new treatment procedures in place last year. Regulations now require that any soldier or Marine caught near a blast has to be pulled from active combat for at least 24 hours, and they must be examined for signs of concussion. Those displaying symptoms – such as dizziness, headaches or vomiting – remain on rest duty until the symptoms disappear. This can take up to a week or two.

The concern that led to this change revolved around the thought that troops need time to recover, and that exposure to a second blast before a brain has healed, could cause permanent damage. Manhattan and Long Island doctors remark that it is pivotal that military officials are attempting to provide combat operation manuals that incorporate the wellbeing of soldiers.
Magnetic resonance imaging or MRI machines, will allow doctors in war zones to see areas of damage to the brain, experts remark.

Sometimes, the brain damage caused by blast can be so microscopic that it does not show up on a computed tomography (or CT) radiation scan. These types of scans are already in use in Afghanistan. Research has shown that about 30% of concussions missed by a CT scan are displayed by MRI machines that can even reveal damage to the brain’s wiring and uncovers areas where brain cell metabolism has been compromised.

The use of MRI technology in the field can also provide more precise diagnosis of muscular-skeletal problems and other very common combat injuries.

A renowned neurologist proclaims that an MRI in the field will allow field doctors to get away from just making a guess as to when soldiers can reenter combat. The potential gains of the push to get these machines onto the battlefield is so large as to be incalculable, reports a source.
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U.S. service members injured in the line of duty have long been eligible to receive the Purple Heart Medal. This has held true for the signature wounds of the current wars, including mild traumatic brain injuries and concussions.

Recently, the criterion for awarding the medal was refined. “More clarity now exists for how medical criteria for the award are applied,” Defense Department officials reported.

“The criteria for the Purple Heart award state that the injury must have been caused by enemy action or in action against the enemy and has to be of a degree requiring treatment by a medical officer.”

The DOD still allows for the award of a Purple Heart when a service member was not treated by a Westchester medical officer, as long as a medical officer can certify that the member’s injury would have required treatment by a medical officer had such an officer been available.

This additional criterion is important because it can still be a very difficult task to determine when a mild traumatic brain injury or a concussive injury occurs if it does not result in a loss of consciousness. Many injuries are severe enough to require treatment by a medical officer, but they are not diagnosed.

Many advances are being made to ensure proper diagnoses in the field, but may still yet be months or years away from implementation, a source based in Manhattan tells us. Officials with the DOD said that as the science of traumatic brain injuries becomes better understood, guidance for award of the medal will evolve.

A Lawyer praises the efforts of the military for their acknowledgement of the sacrifices of the members of the U.S. Armed Forces’.

Receiving a Purple Heart is a high honor given to those who have sacrificed in the line of duty. By taking steps to refine the requirements for the award, the DOD is ensuring that the award maintains its distinctiveness. And by listing the requirements, everyone who sees the Medal will know that a valorous deed was committed by the wearer.
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A man working as a janitor for a small private university was performing his usual tasks when he hit the back of his head on a metal pipe that overhung from the low ceiling of the basement of one of the buildings of the university. After hitting the back of his head against the metal pipe, he suddenly felt dizzy and his vision became fuzzy. He dropped to the floor and felt as though the entire left side of his body sagged. He was taken to a hospital immediately and was seen by a doctor’s assistant in the emergency room. He was immediately discharged when the doctor’s assistant noted that his symptoms had abated.

Dissatisfied with the diagnosis, man went to another hospital where he was diagnosed to have a brain injury: the area of his brain nearest the brain stem that leads to the spinal cord was bleeding. He stayed in the hospital for about thirty days. The Manhattan neurologist who treated him at the second hospital he went to gave a report that he believed that the brain injury sustained by the janitor was a direct result of the accident because the bleeding in the brain was in the same site as the area of his head that hit the metal pipe.

He later filed a complaint for damages under the Workmen’s Compensation Board. The doctor who treated him at the second hospital gave an opinion of his medical findings that the brain injury he sustained was a direct result of hitting his head against a metal pipe.

A year later, the janitor was examined by a neurologist retained by the Long Island university and he gave an opinion on his medical findings. He said that the brain injury sustained by the janitor was consistent with massive head trauma and not by hitting his head on a pipe. The neurologist for the university also opined that the janitor had been diagnosed with bleeding in his brain prior to the accident.

The Board found that the brain injury sustained by the janitor was caused by the accident. The university that employed the janitor asked for a review but the review board also found that there was medical evidence to support the conclusion that the brain injury sustained by the janitor was caused by his accident at the workplace. From his finding, the university appealed.
The only question before the Court is whether or not there is competent and credible medical evidence to support the finding that the brain injury sustained by the janitor was caused by the accidental hitting of his head against a metal pipe in the workplace.

The Court held that since the janitor’s claim for damages was brought under Workmen’s Compensation, the janitor has the burden of proving that the accident caused his disability. He may do so by presenting competent medical evidence. The evidence must not only consist of a medical opinion but it must also include objective medical data on which the medical opinion is based.

The Court also held that the Workmen’s Compensation Board has the obligation to resolve the issue of whether or not the evidence presented by the janitor is competent and whether or not the testimonies given by the janitor and his medical experts are credible.

Looking at the report and the decision of the Workmen’s Compensation Board and the Review Board, the Court noted that ample medical evidence was used to support its findings. Without any claim on the part of the employer of any grave abuse of discretion on the part of the Board, the Court refuses to substitute its own findings for that of the Board.
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The Facts:

On 9 September 2000, infant plaintiff was in an infant walker. Thereafter, infant plaintiff fell down a stairway leading to the second floor apartment in Bronx County.

As a result, a personal injury action has been instituted. Infant plaintiff allegedly sustained the following personal injuries: traumatic brain injury; developmental delays including speech; impaired motor and sensory processing skills; blunt face and head trauma; abrasions, tenderness and swelling to nasal area.

The Manhattan defendants, the manufacturer of the infant walker and others, filed a motion for a summary judgment and a judicial declaration that there is no causal connection between the neurological and developmental delays as alleged and precluding plaintiffs from introducing any evidence at trial in support of their claim that said injuries resulted from defendant’s alleged negligence. Defendants assert that there are no triable issues of fact herein because the infant plaintiff has neurological deficits and developmental delays due to the fact that he has autism and not because he fell down a set of three (3) stairs.

The Ruling:

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. To obtain summary judgment, it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor and he must do so by the tender of evidentiary proof in admissible form. Once the movant has made such showing, the burden now shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.

Here, the court finds that defendants have established as a matter of law that there is no causal connection between the neurological and behavioral injuries alleged in plaintiff’s bill of particulars and the infant plaintiff’s accident.

First, the rules provide that: upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts an opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.

In the instant case, even though defendants made such requests of the plaintiffs, plaintiffs did not disclose the identity of their expert until approximately seven (7) months after they filed their note of issue and certificate of readiness. Said expert affidavit was admittedly submitted in response to the motion for summary judgment submitted by the defendants.

Courts have frequently rejected an expert’s affidavit submitted in opposition to a motion for summary judgment when the expert was never identified in pre-trial disclosure.

In a similar case, the Supreme Court providently exercised its discretion in rejecting the affidavit of the purported expert proffered by the plaintiffs, since they failed to identify the expert in pretrial disclosure, and served the affidavit, which was elicited solely to oppose the defendants’ motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery.

In the case at bar, plaintiffs’ expert affidavit was elicited solely to oppose defendants’ summary judgment motion and said expert was retained after plaintiffs filed their note of issue and certificate of readiness attesting to the completion of discovery. Plaintiffs have not provided good cause for their failure to timely disclose said expert witness and in fact, make no argument whatsoever as to why the said expert was not disclosed prior to the motion for summary judgment. Thus, the affidavit of plaintiffs’ expert is rejected. And even if the court were to consider the affidavit, it fails to create an issue of fact that would preclude summary judgment with respect to whether or not there is a causal connection between the infant plaintiff’s accident and his neurological and developmental delays. The affidavit states that there are clear signs of trauma to the brain and signs and symptoms consistent with brain injury but does not articulate what those signs are; that absent an EEG, the infant plaintiff could not be definitely diagnosed as not having suffered a traumatic brain injury but then goes on to state that the infant plaintiff does have pervasive developmental disorder which is seen in children like E.V. who has traumatic brain injury. Clearly, the affidavit does not in any way explain how plaintiff’s expert came to the conclusion that the infant plaintiff has traumatic brain injury as a result of the subject accident, particularly when he himself states that an EEG is needed to determine if he suffered a traumatic brain injury.

As a rule, an expert’s affidavit containing only conclusory allegations and assuming facts not supported by the evidence is not entitled to consideration.

Moreover, plaintiff’s expert does not explain why an EEG should have been performed when all of the ambulance and hospital records related to the infant plaintiff’s fall state that the child sustained a bloody nose, swollen face and nose and minor head trauma or head injury but no loss of consciousness and no concussion. Even when the infant followed up with his pediatrician, two to three days after the accident, he made no significant findings. What’s more, plaintiff’s expert does not explain what type of examination he performed on the infant plaintiff before he concluded that the child suffered a traumatic brain injury and that, within a reasonable degree of medical certainty, the infant plaintiff was a child with a good intelligence despite these traumatic injuries he suffered that proximately resulted from the accident on 9 September 2000 with his walker.

Therefore, defendants’ motion is granted with respect to the fact that plaintiffs have failed to establish a causal connection between the infant plaintiff’s neurological and developmental delays and the subject accident but denied with respect to the other injuries allegedly sustained.
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This is a case where the Manhattan Court reiterated the principle that when a single indivisible injury, such as brain damage, was negligently inflicted upon the plaintiff, defendants can be held jointly and severally liable notwithstanding that the latter neither acted in concert nor concurrently with each other.

A mother, who suffered gestational diabetes during her pregnancy, gave birth to an unusually large baby who is the plaintiff in this case. At the time of the trial, plaintiff was severely and permanently retarded as a result of the brain damage she suffered at birth. The evidence established that the obstetrician who had charge of the ante partum care of plaintiff’s mother and who delivered the plaintiff, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that the defendant, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant’s condition after birth. Based upon this evidence, the jury concluded that the obstetrician committed eight separate acts of medical malpractice, and the defendant pediatrician committed three separate acts of medical malpractice.

During the trial, the plaintiff’s witness concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Although the obstetrician’s negligence contributed to the plaintiff’s brain damage, the medical testimony demonstrated that the defendant’s negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors.

After the jury was charged, the Long Island defendant contended that he was only “liable for what injury he puts on top of the injury that exists”, and therefore responsible only as a successive and independent tort-feasor. He claimed that his liability was not joint and several but rather was independent and successive.

The Court did not agree.

The Court held that when two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable. This is so because such concerted wrongdoers are considered “joint tort-feasors” and in legal contemplation, there is a joint enterprise and a mutual agency, such that the act of one is the act of all and liability for all that is done is visited upon each. On the other hand, where multiple tort-feasors “neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts, including aggravation of injuries by a successive tort-feasor. The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused.

The Court stated that While the wrongful acts of the two defendants were not precisely concurrent in point of time, the defendants may nevertheless be joint tort feasors where, as here, their several acts of neglect concurred in producing the injury.”

According to the court, he jury was unable to determine from the evidence adduced at trial the degree to which the defendants’ separate acts of negligence contributed to the brain damage sustained by the plaintiff at birth. Certainly, a subsequent tort-feasor is not to be held jointly and severally liable for the acts of the initial tort-feasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the others Here, however, the evidence established that plaintiff’s brain damage was a single indivisible injury, and defendant failed to submit any evidence upon which the jury could base an apportionment of damage.
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The infant plaintiff, then a sixth grader at Intermediate School 292 in Brooklyn (IS 292), was seriously injured when he fell down a flight of stairs on his way to lunch. Because of the resultant traumatic brain injury, plaintiff was unable to remember what caused him to trip and fell down. However, it was plaintiff’s theory at the trial of this action, that he was pushed down the stairs by a group of older students. Plaintiff further presented testimony that it was the written policy of IS 292 to have a teacher escort the sixth graders down to lunch from their second floor classrooms. Plaintiff claims that his teacher’s negligent failure to do so proximately caused his injury.

Plaintiff testified that, he had been in math class on the second floor right before lunch and that the teacher for the class was Mrs. Thomas. According to plaintiff, Mrs. Thomas never escorted her class to the lunchroom and that day was no exception. Plaintiff stated that at the sound of the bell, he and his friend Nathaniel headed to one stairwell, while the rest of the class went to the stairwell at the other side of the hall. The Manhattan Plaintiff testified that he suddenly heard footsteps which sounded like they were coming from a herd of buffalo and the next thing he remembered was waking up in the school nurse’s office with a tissue on his forehead and blood stains on his shirt. Plaintiff was taken by ambulance to Brookdale Hospital where he spent time in the Intensive Care Unit.

A Lawyer said that, at trial, plaintiff detailed the “excruciating” pain he suffered immediately following his accident and for the six days he spent in the hospital. Plaintiff described this pain as being in his head, neck, and lower back. Additionally, his arms and leg were swollen and sore and he was in a neck brace. After his release from the hospital, plaintiff received outpatient physical and occupational therapy there. The purpose of the physical therapy was to improve his balance and mobility skills and the occupational therapists sought to improve plaintiff’s hand/eye coordination and to build strength in his arms. Plaintiff stopped attending therapy but had to use a cane for balance for about three years.

Plaintiff testified that up to about a year before the trial he would get very bad headaches every week or two and these headaches would last between two and three days. When he had a headache, all he wanted to do was sleep because it hurt to be around noise and light. At trial, plaintiff reported that he continues to take medication to prevent the return of these attacks. Lastly, plaintiff testified that his head injury has affected his ability to play sports because he is unable to stand for long periods or to jump.

A Lawyer said that, defendants The City of New York and the Board of Education of the City of New York called only one witness to testify. Dr. Marlon Seliger, a neurologist examined plaintiff for about five or ten minutes. In conducting his neurological examination upon plaintiff, the doctor first asked plaintiff questions to determine if he was oriented to person and place. He also asked him questions to assess his cognition, memory, and speech and language ability. He then performed a motor and sensory examination. Dr. Seliger did not find any deficits in plaintiff’s neurological function and concluded that he did not suffer a neurological injury as a result of his trip and fall down the stairs.

The jury found defendants “negligent in the supervision of plaintiff” and further found that that negligence was a substantial factor in causing the injuries sustained by him. The jury awarded plaintiff damages in the aggregate sum of $200,000 for past pain and suffering and $150,000 for future (58 years) pain and suffering. The jury also awarded plaintiff damages of $800,000 for impairment of future earnings during the next 45 years.

Defendants’ moves to set aside the jury verdict rendered in favor of plaintiff and grant judgment in their favor on the ground that they cannot be liable for plaintiff’s brain injuries as a matter of law. Alternatively, defendants seek an order, pursuant to setting aside the jury verdict and ordering a new trial on the ground that the verdict is against the weight of the evidence.

The issue in this case is whether defendant is liable for the brain injuries suffered by the plaintiff.

The Court insofar as deciding in the question of liability of the defendants, said that according to defendants, assuming that plaintiff was pushed down the stairs by the unidentified group of students, that attack was not reasonably foreseeable by the school and, since the unprovoked attack was sudden and spontaneous, any lack of supervision by the plaintiff’s teacher could not have prevented it. Thus, concludes defendants, that lack of supervision was not the proximate cause of plaintiff’s injury. The court rejects defendants’ contention that the verdict is contrary to the law.

The Court held that, it is beyond cavil that schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.

In previously denying summary judgment to defendants, this Court, in a decision, found that questions of fact existed “as to whether the school had a written policy for teachers to escort the sixth grader classrooms to the cafeteria; whether it violated that policy and whether such violation was a proximate cause of the injury”. At trial, it was undisputed that the school did have such a written policy. As noted, David Prager, the assistant principal of the school, explained that that policy was put into effect because it was recognized that the sixth graders should not be unsupervised in the hallways and the stairwells since, as the youngest members of the school community, they were at the greatest risk of being injured in those areas. Having defined their duty, the defendants cannot now claim that no such duty existed. In that same vein, it is disingenuous for defendants to claim that such an attack was unforeseeable when their own assistant principal testified that one of the reasons that crowds were kept out of the stairwells by the teachers was because someone could get pushed down the steps.

Nor did defendants present any evidence to dispute plaintiff’s testimony that his teacher violated that duty by staying in the classroom instead of escorting her class to the lunchroom. Finally, the evidence failed to establish as a matter of law that the violation of the defendants’ duty that is, the fact that there was no teacher in the stairwells was not the proximate cause of plaintiff’s head injury or that her presence therein may have prevented the incident.

Thus, the court concludes that defendants have not established their entitlement to judgment as a matter of law, and that the issues of fact were properly left for jury determination. Defendants contend that its determination was against the weight of the evidence presented at trial. Further, it is well established that a jury verdict may not be set aside as against the weight of the evidence unless it plainly appears that the evidence so preponderates in favor of the other side, that such verdict could not have been reached by any fair interpretation of the evidence. In that regard, great deference is accorded to the fact-finding function of the jury, since, having seen and heard the witnesses at trial, it is in the foremost position to assess their credibility.

In the case at bar, as discussed, the evidence supported the jury’s determination that the defendants had a duty to protect plaintiff by escorting him and his classmates down to the lunchroom and that her failure to do so was a violation of that duty. The long Island Court also concludes that the jury’s further determination that that violation was a proximate cause of plaintiff’s head injury was supported by a “valid line of reasoning and permissible inferences” and therefore should not be disturbed.

It is true, as defendants note, that there was no direct evidence as to how plaintiff trip and fell down the stairs. However, the circumstantial evidence at trial supported the conclusion that plaintiff was in fact pushed down the stairs by an older student. In that regard, it is well settled that when relying upon circumstantial evidence to establish all or part of a plaintiff’s prima facie case it is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.

In this case, Mr. Prager testified that he saw a group of students running toward the stairway and bounding into the stairwell. While plaintiff had no memory of his fall, he did remember hearing heavy footsteps approaching. When Mr. Prager opened the stairwell’s door minutes later, the group was no longer there, but he saw plaintiff’s blood on the ground at the bottom of the stairs and plaintiff being helped to the nurse’s office by a security guard.

Faced with this evidence that the group charged through the stairwell where plaintiff had just entered and disappeared after his fall, it was reasonable for the jury to infer that one or more of the members of the group was responsible for plaintiff’s head injury.

Defendants contend, however, that even assuming their duty and their negligence, they cannot be held liable because the evidence established that the attack happened so quickly that, even had a teacher been stationed on the stairwell, it could not have been prevented. Thus, defendants claim that the evidence failed to support the jury’s finding that their lack of supervision was a proximate cause of plaintiff’s injury.

Moreover, the jury could have reasonably concluded that had a teacher been present in the stairway, the student or students would not have pushed plaintiff. After all, the jury may use the “logic of common experience itself, as applied to the circumstances shown by the evidence” in determining whether the defendant’s negligence caused plaintiff’s injury. The conclusion that the students did not want to be identified and would not have committed what could have been charged as a criminal assault in front of a witness is not only supported by common sense, but by the fact that they ran from the scene after plaintiff’s fall. The jury could also conclude that had plaintiff tripped down the stairs through no fault of these students, they would have likely sought to get him help rather than run away.

In view of the foregoing, the Court denied the motion of the defendant which seek to set aside the jury verdict as contrary to law or as against the weight of the evidence; and the motion which seeks an order reducing the damages awarded plaintiff, as well as plaintiffs’ cross motion seeking an increase in those damages.
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State Representative Dewayne Bunch, also a Whitley County High School teacher, is improving. According to the public relations and marketing director for Shepherd Center in Atlanta, Georgia, the 49-year-old who sustained a head injury while trying to break-up a fight between two students in the school’s cafeteria, in April, is recovering nicely.

The teacher was transported to Baptist Regional Medical Center and then transferred to the University of Kentucky Medical Center. Two weeks after that, he was moved to the intensive care unit at Shepherd Center, a hospital specializing in the treatment of brain and spinal cord injuries.

The State Representative’s traumatic brain injury (TBI) has improved enough that he has now even been moved to the hospital’s rehabilitation unit.

His wife was quoted as giving thanks to the public. “I appreciate the outpouring of support and kindness we’ve received from the community. Please continue to keep [my husband] in your prayers as he continues his journey to recovery.”

More extensive details on his recovery and prognosis are not available at this time. Realizing how varied brain injuries can be, an Attorney, has said that his brain could be recovering from a minor hurt, or it could be trying to reconnect neurons after a serious injury left him with a damaged portion of his brain. While it is unclear what the extent of the TBI is, the fact that the teacher is going to rehabilitation is a good sign. The first periods immediately after a TBI are extremely important and rehab helps tremendously.

The Whitley County Sheriff said last Monday that the incident is still under investigation. The exact reason why Bunch was injured is still unclear.

Two more teachers received minor injuries when they joined Bunch in trying to break up the fight.

The fighting students have been charged with first-degree assault in the injury of Bunch and third-degree assault in the injury of the other two instructors. The students are ages 15 and 16.

Representative Bunch is a science instructor at the Whitley County High School. As a member of the Kentucky House of Representatives, he represents all of Whitley County and a portion of Laurel County in the 82nd district. Doctors in Manhattan and Queens are studying the case.
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Physicians currently do not have many distinctions between explosive blast traumatic brain injury (bTBI), closed head traumatic brain injury (cTBI) and penetrative traumatic brain injury (pTBI), according to doctors. The military also uses the same criteria to assess such injuries as civilians.

A 1993 definition from the Mild Traumatic Brain Injury Committee of the American Congress of Rehabilitation Medicine of TBI apples to bTBI when an explosive blast causes loss of consciousness, amnesia, or loss of focus. The severity is determined by how long the altered mental state lasts. Less than 5 minutes is mild, though it can lead into difficulties like headaches, confusion, and amnesia, as well as a difficulty to concentrate, altered mood, problems sleeping, and general anxiety. These symptoms usually go within a few hours or days.

Studies in Manhattan and Long island have discovered that even these mild cases could result in post-concussive syndrome which could happen days later. Government agencies are currently developing guidelines to manage this condition, which seems to respond to simple reassurance and specific treatments like non-narcotic analgesics, anti-migraine medication to treat headaches, and anti-depressants. Just as with civilian cTBI, the problem might last only a few weeks, but it might well last a year or more in some cases.

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