Fractured elbow during PE class...

by Z
(Las Vegas, NV)

In gym class, my son and the other 8th grade boys were told to jog over to the tennis cages for games. A ball, not part of the day's activities, rolled into his path while jogging and he tripped over it. He fractured his elbow and dislocated his growth plate.

He sat outside on the blacktop for the entire 50 minute period in intense pain. He was not noticed or approached by the PE teacher, who was practicing his golf swing and not paying attention to the students. When it was time to get dressed, he was unable to move his arm and told his friend to tell the PE teacher, who said he should just go to the nurse.

The teacher never came over or spoke to my son to see what happened. The bell rang, and since it was the last period of the day, my son just came out to my car to tell me he was hurt, since he knew I was waiting for him for pickup.

Is the school liable for my son's medical expenses, since he fell over equipment that was not put away nor part of the activity? Also, is the school negligent, since the PE teacher was not watching the children and didn't notice a 13 year old boy sitting out in pain for nearly 50 minutes, while everyone else was playing? There must be something I can do about this. Thank you.

Visitor Question:
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ANSWER for "Fractured elbow during PE class...":

Z (Las Vegas, NV):

Whether or not the school, or more specifically, your local school district should be liable for your son's injuries and resultant damages will depend on several factors.

In cases of personal injury the term "damages" can include such costs as medical, chiropractic and dental bills, out of pocket expenses for such things as prescription and over the counter medications, slings, costs of transportation to and from treatment, etc., lost wages, and pain and suffering.

In your son's case, lost wages wouldn't apply to him, but wages you may lose while caring for him might.

To be liable, you would have to be able to prove the school, or in this case, the PE teacher was negligent in permitting the tennis balls to roll in your son's path. Under the facts you present there doesn't appear to be sufficient evidence showing rolling tennis balls were inherently dangerous, and therefore the balls should not have been loose on the floor.

Unfortunately, there are all sorts of balls which are usually found on and around a gymnasium. It would be entirely unreasonable for a school to eliminate each and every ball from being loose on a gymnasium floor. The fault, instead of with the PE teacher, may be with your son for not avoiding stepping on the ball.

Moreover, while the PE teacher may have been practicing his golf swing, there doesn't seem to be any evidence he was, or should have been aware of your son's injury. To the contrary, your son, for whatever reason, chose not to inform the PE teacher about his injury. Instead, your son left the gymnasium and ventured onto the pavement.

There is an argument to be made that the PE teacher did not make an effort to engage your son with the class activities, but it would be difficult to prove his lack of engagement rose to the level of negligence required to assign liability.

Because issues of negligence are seldom clear-cut, you might want to consult with a personal injury attorney. Most will not charge for an initial office consultation. If you decide to retain the attorney you won't have to pay any fees until, and unless the attorney wins your son's case or settles it out of court.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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