Can You Receive Compensation If Your Child Is Injured at School?

When you send your children to school in the morning you expect them to be safe and protected and return home at the end of the day unharmed. In 2014, research data showed that children in the United States spend approximately 943 hours in school annually. This is a significant amount of time that our children are away from parents and in the care of school employees.

What happens if you receive that dreaded phone call from the school informing you that your child was hurt at school by another student or another third party and has been transported to the hospital? Is the school liable for the child’s injuries caused by that third party? Unfortunately, the answer isn’t straight forward.

When the school takes custody of the child, the school assumes the protector role of a parent. However, under New York law, schools are not insurers of safety and cannot reasonably be expected to monitor and control all movements of every child. School authorities fail to provide adequate supervision when they have knowledge that similar conduct has caused injury in the past. Once the school has notice of dangerous conduct it has a duty to prevent that conduct from occurring. Despite this, a mere threat or a remote act of similar dangerous conduct does not meet the notice requirement.

New York courts have found that school authorities have a heightened duty to supervise younger children. In the frequently cited case, Garcia v. City of New York, 222 AD2d 192 (1st Dept 1996),a 5-year-old was permitted to go to the bathroom unsupervised and while in the bathroom was sexually assaulted by an older student in the school. The court held that even though the school had no prior notice, the school should be held liable. The court reasoned that had the school provided adequate supervision the sexual assault could have been prevented.

The following are some factors New York courts have considered when determining whether schools should be held liable for the acts of third parties:

  • History of physical assault or threats against the injured child
  • Similar prior conduct against another child
  • Remoteness of the similar prior conduct
  • Age of the injured child
  • Disparity in age between the victim child and the assailant
  • The egregious nature of the act committed
  • The length of time the child was left unsupervised

If your child has been injured by a student while in the custody of a school, it is important that you seek legal advice and guidance from an experienced attorney to ensure that your child’s injuries do not go uncompensated. The attorneys at Spiegel, Brown and Fichera, LLP have over 40 years of knowledge in prosecuting schools for failing to provide adequate supervision which unfortunately resulted in a child being injured.

Was Your Child Injured by the Negligence of Someone Else?

Imagine if your child was crossing the street and suddenly struck by a vehicle. Or while driving your child to school, a car behind you fails to stop crashing into the back of the car. Or while grocery shopping your child slips on liquid spilled by a store employee causing him to fall to the ground.

Childhood accidents occur far too often. According to the World Health Organization (WHO), child injuries are a global public health concern causing children to endure disabilities to varying degrees. Causes of childhood injuries include, but are not limited to the following:

  • A trip and fall
  • An injury on a playground or at school
  • Automobile accidents either as a passenger or being stuck by a vehicle while walking or riding a bicycle
  • School bus accident

The medical expenses and temporary or permanent disabilities as a result of an injury can take both a financial and emotional toll on you as a parent. Although a child cannot sue to get compensation for their pain and suffering and the cost of medical expenses as a result of their injury, New York law permits a child’s parent or guardian to do so on their child’s behalf.

Although in the case of a child injury, New York law “tolls” or suspends the statute of limitation for negligence and permits a law suit to be brought up until 3 years past the child’s 18th birthday, it is to the advantage of both the parent and child to seek recourse immediately. The more time that passes from the date of the accident, the more difficult it is to obtain evidence needed to prove the case including eye witness testimony, medical records for treatment of the injuries, and business or municipal records.

In order to ensure that you as a parent take the proper steps to maximize your chances of recovering for your child’s pain and suffering, emotional distress and associated financial expenses it is important that you seek experienced legal advice as soon after the accident as possible. The attorneys at Spiegel, Brown & Fichera are here to help guide you through this process and recover what is owed to you.

LANDLORDS LIABILITY OR NEGLIGENT BUILDING SECURITY

Under New York Law, landlords have a common-law duty to take minimal security precautions against reasonably foreseeable criminal acts by third-parties (James v. Jaime Towers Housing Co., Inc., 99 NY 2d 639, 641 {2003}; Burgos v. Aqueduct Realty Corp. v. New York City Housing Authority, 92 NY 2d 544, 548 {1992}; Raghu v. 24 Realty Co., 7 AD 3d 455, 456 {1st Dept. 2004}).

Moreover, when a public entity (such as a housing authority) acts in a proprietary capacity as a landlord, it is held to the same duty as private landlords in providing security devices in a building (Price v. New York City Housing Authority, 92 NY 2d 533, 557 {1998}; Miller v. State of New York, 62 NY 2d 506, 508 {1984}).

The issue of what constitutes “minimal security precautions”, particularly with respect to apartment buildings, has been passed upon by the Court of Appeals which has stated: “Locks for the entrances” is considered “the most rudimentary security” (Jacqueline S. v. City of New York, 81 NY 2d 288, 295 {1993}; See also, Miller v. State of New York, 62 NY 2d 506, 514 {1984} – “Rather minimal security measure of keeping the… doors locked”).

It is the obligation of the injured party to prove that the owner/landlord has breached his duty by producing evidence that “renders it more likely or reasonable than not the assailant was an intruder who gained access to the premises through a negligently maintained entrance” (See, Burgos v. Aqueduct Realty Corp v. New York City Housing Authority, 92 NY 2d 55). In other words, even if the landlord has failed to properly secure the building, this would failure would not be a proximate cause of the plaintiff’s injuries, unless the assailant was an intruder; i.e., a person who is not a tenant nor an invited guest of a tenant, but rather an “intruder”.

In a recent decision handed down by the Appellate Division, First Department, (Terrero v New York City Housing Authority, 116 AD 3d 570 {1st Dept. 2014}), the court dealt with a situation where the former boyfriend of a 16 year old resident of the Housing Authority’s building gained entrance through the front door because of a non-functioning lock.  He subsequently sexually assaulted the infant-plaintiff.  The Housing Authority argued that the landlord not be held liable, since the victim knew her assailant and; and, thus, could not be considered an “intruder”.  The victim, being represented by Donald D. Brown, Jr., Esq., a partner in the firm of Spiegel Brown & Fichera, LLP,1 successfully argued that the term “intruder” clearly encompasses persons who have not authority, permission or invitation to enter the premises.  The fact that the “intruder” in this case, had previously had been an invitee of the tenant was of no moment, in that he was not an invitee on the day of the assault.

The other factor that is critical in establishing a landlord’s liability is that it must be foreseeable to the landlord if there is a need for security, perhaps enhanced security, because of the history of assaults or other similar crimes in the premises.  In this connection, evidence of a history of assaults in the building, criminal activity in the area of the building where the crime took place is, at least, factual issues for a jury as to the questions of whether the landlord was negligent in failing to provide adequate security under the circumstances (Terrero v. New York City Housing Authority, 116 AD 3d, 570,571 {1st Dept. 2014}) it is also important to note that the courts have consistently held:

“There is no requirement…”

Moreover,

“That the past experience relied on to establish foreseeability be of criminal activity at the exact location where the plaintiff was harmed or that it be of the same type of criminal conduct which the plaintiff was subjected (Jacqueline S. v. New York City Housing Authority, 81 NY 2d 288, 294 {1993}.  To the same effect, Ungruhe v. Blake Riv Realty, LLC, 90 AD 3d 497 {1st Dept. 2011}; Romero v. Twin Parks Southeast Houses Inc., 70 AD 3d 484, 485 {1st Dept. 2010}).”

In conclusion, a survey of New York Law in the area of a landlord’s legal liability for harm caused to tenants (or their guests) by an intruder/assailant establishes the following controlling legal principles:

1.    A landlord is under a duty to take, at least, minimum security precautions; at the least, functioning and adequate door locks.

2.    The landlord’s duty to provide building security beyond a minimum basis will be determined by the foreseeabilty of harm of the general nature to the victim.  That is, a history of incidents or complaints potentially harmful activity in the building will place the landlord under a legal duty to take all reasonable steps to protect the tenant from harm.

3.    The harm for which the landlord will be responsible extends only to harm injuries inflicted by an “intruder”; i.e.  Someone who does not have a right nor permission to be on the premises at the time.

The firm of Spiegel Brown & Fichera, LLP has handled negligent security cases on behalf of injured persons throughout New York State over the past 40 years and have been instrumental in litigating cases which have created these principals of New York Law.

A consultation as soon as possible with the firm of Spiegel, Brown & Fichera is always without charge of any kind.

We will never charge you a fee for anything on a case, except as may be clearly disclosed to you; in advance and in writing.  You will never have to pay a fee in advance.  All fees will only be payable, if you agree, in writing, that you wish us to represent you; and, then, the fee will simply be collected once you have recovered.  There is no fee, unless we make a financial recovery for you.


1 Mr. Brown was arguing the appeal on behalf of the victim’s trial counsel, Zaremba Brownell & Brown, PLLC. Mr. Brown of Spiegel Brown & Fichera, firm regularly handles appeals on behalf of other law firms, as he has 40 years of experience handling appeals in both the Federal and State courts, including having appeared before the United States Supreme Court, the United States District Court for the Second Circuit and the Court of Appeals of the State of New York.

MUNICIPALITIES AND THEIR LIABILITY FOR DANGEROUS ROADWAYS

There are many motor vehicle accidents that occur that are not caused by the negligence of the drivers.  There are many roadways which are themselves, inherently dangerous and cause a great number of accidents.  In our most recent road design defect case, the law firm of Spiegel, Brown, Fichera & Coté, LLP, represented a motorcyclist in a claim against a municipality for a motorcycle accident that occurred with another car at a very dangerous section of the roadway.  The accident caused our client to suffer devastating brain injuries, multiple fractures to his spine, as well as nerve injuries to his arm which ultimately resulted in his right arm being amputated.  A claim was made against the municipality in which the road was located after investigation revealed that there was a history of accidents at that location.

A municipality owes to the public, a non-delegable duty to keep its streets and highways in a reasonably safe condition. This duty, however, is not absolute.  A government body enjoys qualified immunity for its decisions in maintaining its roadways.  What this means is that once a municipality is made aware of a dangerous traffic condition, it must undertake a reasonable study with respect to that condition and may be held liable if that study is either plainly inadequate or if the decision it makes after the study has no reasonable basis.

For a municipality to be liable it must first be made aware of a dangerous condition of a roadway.  One of the most common ways in which it can be shown a municipality knew or should have known of the dangerousness of a particular segment of roadway, is if there is a history of prior accidents at that location.  Unfortunately, just a number of accidents is not usually enough to establish the town had notice.  Prior accidents will only be admissible if the facts of those accidents are substantially the same as the accident which caused the lawsuit that you are litigating.  In such situations the judge has discretion of which accidents are admitted and the attorney must make sure they have gathered all the information available with respect to the prior accidents.  This is when an attorney’s experience in litigating a road defect case is critical.  Information gained during the discovery process from various sources outside of the municipality, including the local traffic and safety board and the various law enforcement departments who might have investigated the prior accidents, can make a difference of whether you are ultimately victorious in your litigation.

Once it has been established that the municipality was on notice of a dangerous condition, then it must be shown that they either failed to undertake a reasonable study or that the decision they made following the study had no reasonable basis.  For example, if it is claimed that a stop sign should have been installed at an intersection with a history of vehicles having collisions, it must be shown that the municipality failed to investigate why there was a high number of accidents at that location as opposed to other intersections.  If on investigation by the town concluded that there was a problem at that intersection, then there should be a record of what alternatives were discussed by the town and the reasoning behind what they did or did not do with respect to this problem to correct it.  If the municipality decided not to install a stop sign but instead put up a speed advisory sign reducing the speed through this intersection, then there must be a reasonable basis for doing so as opposed to the stop sign.  If the only reasoning was that the town did not wish to order a stop sign but had a speed advisory sign lying around, then the argument may be made that it was not a reasonable basis.  If, however, there was a budget crisis and they could not afford a stop sign at the time that may be considered a reasonable basis for not putting up the stop sign.

Once a municipality has determined what reasonable measures may be necessary to alleviate a dangerous condition, it cannot unjustifiably delay in taking that action. As one court stated “While the decision to install a traffic control device is a discretionary governmental function which will not expose a municipality to liability . . . a municipality that determines that a traffic control device is necessary to remedy a dangerous condition, must act with reasonable speed to correct the condition and it might be held liable where there is an unjustified delay in implementing its remedial plan.”

Cases against municipalities for dangerous conditions on the roadway can be very difficult and an attorney must have a good understanding of the law and the burdens of an injured person in presenting their case to recover for their injuries.  Many drivers who are involved in accidents because of a dangerous roadway never seek compensation for their injuries because they are unaware they are allowed to do so.  In the case noted above involving the motorcyclist, handled by the law firm of Spiegel, Brown, Fichera & Coté, LLP, it was learned that just eight months prior to our client’s accident, there was another almost identical motorcycle accident at the same location.  During our representation of our client, a thorough search was performed for any prior lawsuits related to the location of the accident.  We found that no other lawsuit involving this prior motorcycle accident had ever been filed or that any claim had been brought against the municipality.  The motorcyclist who was killed in this accident had a viable claim against the municipality just as our client did.  Unfortunately, his estate probably never realized this and never retained an attorney to prosecute the claim against the municipality, so his heirs were never compensated for the municipality’s negligence and how it contributed to his accident.  Even if you are involved in a single car accident you may not be at fault for its happening.  If it is a dangerous roadway then the municipality may be negligent for your accident and you should seek an experienced attorney to help you to help find out if you are entitled to compensation.


Friedman v. State, 67 NY2d 271 (1986).

Bresciani v. County of Dutchess, 62 AD3d 639.

Witkowski v. Escobar, 28 AD3d 543 (2nd Dept., 2006).