Student visiting a private school broke his arm in the stairwell...

by Parent
(Queens, NY)

My child who has an IEP (Individualized Education Plan) under emotional disturbed classification was visiting for the day at a small private school in NYC. He is a sixth grader and was paired with an eighth grader.

During the mid morning class he got into a verbal conflict with another student where as my son was yelled at by the teacher to "get out of my classroom." Crying, he was escorted out, and while going down the stairs with another teacher (on the second flight of a three flight staircase) he said he tripped on his shoes and fell.

The school states he jumped from top of the ninth to thirteenth step, where he broke his forearm. He broke both bones - one protruded out of a penny-sized hole in his arm and hit his eye, resulting in a golf ball sized hematoma over his eye.

An ambulance was not called, and there was no nurse on staff. I was called between the time he was coming down to the office, when staff told me he was acting out and to "come pick up your child"... that was when the accident occurred.

Now the school will not release any information on paper as to what exactly happened, and I'm hearing conflicting accounts from the principal and students/child. The school is saying he "jumped" off the top stair, and the child is saying he tripped. What to do?

I need more info, but as soon as I requested written accounts the school said they cannot give anymore info until they speak with their lawyers. I was told by school that they have first aid training and emergency preparedness training, but never had a nurse on staff for 56 years. What are requirements for NYC private schools on having a nurse on staff?

Also, the school had my son's IEP on file in the application and continued to speak with me about attending the school. Now they are saying they were never told of his behavior issues. What is the liability of the school in this instance? What can I do? Thank you.

Visitor Question:
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ANSWER for "Student visiting a private school broke his arm in the stairwell...":

Parent (Queens, NY):

For the school to be liable for your son’s injuries will require a showing of school negligence. At this point, your son’s expulsion from class does not appear to have constituted negligence. What may constitute negligence though is how your son was escorted down the stairs.

Ask your son what happened. If your son slipped and fell of his own accord, and as a result of the fall was injured, then the school may not be negligent. Here's a good overview of when property owners are liable for injuries.

However, there are additional factors to take into account. For example, if your son was being led down the stairs, were there handrails in place for him to hold? Did the teacher take him by the hand to escort him down the stairs? Were the stairs slippery? Were there any impediments or faults in the steps?

These are just some of the factors which need to be reviewed before deciding whether or not the school was negligent. We were unable to find any requirements for New York City schools to have staff nurses.

If your son did jump from the top of the ninth to the thirteenth step and fell, the school may not have been negligent. However, the school’s failure to call for medical help may constitute negligence in exacerbating his injury, especially because your son may have unnecessarily suffered for a longer time than was necessary.

Whether or not the school knew about your son’s behavior issues or not doesn't seem entirely relevant. What is relevant is the issue of negligence.

If the school was negligent, then they are liable for your son's injuries, his medical and therapy bills, your out-of-pocket expenses, your lost wages if you had to take time off work to care for him, and for his pain and suffering. It is very likely the school is insured for injuries to visitors, staff, and students.

At this point the school has refused to release records of the incident. Because they are a private school they are within their rights. You will need to speak with the teachers involved, especially the one who led your son down the stairs, and any witnesses.

From the facts you present, it is clear the school doesn't want to cooperate. The school has already told you the matter is in the hands of their attorneys. Unless you are a law school graduate licensed to practice law in New York, you will have a difficult time negotiating with them. In fact, they may not negotiate at all.

Their job is to represent the school and protect its interest in all matters. That includes supporting the school’s position they aren't liable for your son's injuries.

Because of the seriousness of your son’s injuries and the school's refusal to accept responsibility, you and your son would be well-served by seeking the advice and counsel of a personal injury attorney with experience in school law.

An attorney can do things you can't. An attorney can subpoena the school's records, take the depositions of the school teachers, have the court order the school to produce documents for your review, and more.

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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