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.