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The infant plaintiff, then a sixth grader at Intermediate School 292 in Brooklyn


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.

Brain injuries suffered by a child due to a person’s negligence, will greatly affect his/her life. A Kings Brain Injury Attorney can advice you of the possible legal remedies that you can avail. Without a Kings Personal Injury Attorney, you may lose your rights that will cause you a lot. Kings Injury Attorneys at Stephen Bilkis and Associates can help you.

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