Liability for improper supervision?

by Diane
(Vineland, NJ)

My daughter (senior in high school) was playing volleyball in a co-ed gym class. The PE teacher was supervising three classes at once in three different rooms. The teacher was in the basketball room at the time my daughter was injured.

My daughter hit the ball over the net, scoring a point. The male on the other side of the net kicked the ball towards her, hitting her in the head. My daughter got a concussion, her fourth. She will be absent from school for most of the remaining year, jeopardizing her GPA and honors standing.

Is the school district negligent in allowing the teacher to supervise three sections simultaneously? Is the teacher negligent for doing it? If the teacher was present, perhaps the male would not have taken that action. After the incident, my daughter had to go find the gym teacher for assistance with her injury.

Should schools be permitted to have co-ed gym classes for this reason? What are our options? Thank you.

Visitor Question:
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ANSWER for "Liability for improper supervision?":

Diane (Vineland, NJ):

The obvious question from a defending lawyer would be, why have you continued to allow your daughter to play volleyball after she had sustained three (3) previous brain concussions?

A brain concussion is a serious traumatic head injury caused by a blow to the head or any other activity which jars or shakes the brain inside the skull. After a concussion, the brain is much more sensitive to damage. Most physicians strongly advise patients who have sustained brain conclusions to avoid future activities which might result in additional blows to the head.

If your daughter had been treated for her three previous brain concussions, her physician would have undoubtedly advised her not to continue playing sports where the possibility of a head injury may exist. That includes volleyball.

From the facts you present, you did not seek medical care for your daughter. That is something difficult to understand, especially as this was her fourth brain concussion.

There is a legal doctrine called "Assumption of the Risk." As it relates to sports, assumption of the risk basically means when you are aware a sporting activity may result in specific injuries, and you ignore that risk and play anyway, you assume the risk of injuries normally associated with that sport.

When a person assumes that risk and an injury then occurs, liability attaches to the person who assumed the risk, and normally not to the person who unintentionally inflicted the injury.

In other words, it is entirely possible when playing volleyball a player may get hit in the head with the ball. In this case, someone kicked the ball and hit your daughter's head. While apparently unsportsmanlike, there is no evidence the injury was purposely inflicted.

As to the teacher's coaching three classes at one time, there is no evidence the coach would have been able to stop the injury from occurring if he had been coaching less classes. As a result, liability would likely not attach to the teacher or the school district.

To read more about Assumption of the Risk in sports go to:

"Sports and the Assumption of Risk Doctrine in New York"
St. John's Law Review

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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Incorrect Assumptions
by: Diane from Vineland

You make several incorrect assumptions here:

(1) Daughter was not advised to abstain from all sports.

(2) Gym is a required course in NJ. We did not "choose" for her to play volleyball.

(3) Of course, we got immediate medical attention for our daughter: hospital visit for a cat scan, concussion doctor, and physical therapy--still ongoing.

(4) Testosterone-filled male may not have chosen to kick the ball if he knew a teacher was observing.

At any rate, the school is working with us to assure daughter's grades do not drop. Hopefully, she will be able to enjoy the usual senior activities.

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