My 8 year old daughter fell at the private catholic school she was attending in October 2016. During recess, she fell on the playground while being supervised by a volunteer parent (who’s name is on the accident report – not a teacher). My daughter does not recall a teacher being outside with her class during recess at all that day.
She had to go to the emergency room where they determined she had fractured her elbow through her growth plate. She required major surgery with hardware (rod) put into her radius (forearm bone). She was casted post-op, then had to use 2 dynamic splints twice daily for a few months to help with movement. She also needed physical therapy to address her lack of motion and scar tissue that developed post-op.
She then had to have the hardware removed in January 2017, requiring another major surgery. Her surgeon feels she will likely need future surgery as well since the fracture was through her growth plate (as she’s still growing) & will likely develop a deformity. She also has a rather long, large scar down her forearm which is still very sensitive, and another by her thumb that bothers her when something rubs against it.
Our private insurance took care of all the bills (surgery, doctor visits, splints, etc), and the school’s insurance paid the balance for whatever our insurance didn’t cover, such as co-pays or splint rentals. Is that how this should have been paid? Or should the school insurance have paid first then our private insurance pay the balances?
Also, there is no teacher signature on the accident report. Instead, it lists a witness and does not state anywhere that a teacher was even present. Was the private school negligent in their supervision (or lack there of) by not having a teacher outside while the kids were on the playground for recess?
Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.
When you enrolled your daughter in school you may have signed a “Release of Liability.” The release can go by other names like “Indemnification Agreement,” or “Hold Harmless Agreement.” In most cases, those releases are enforceable. Only when there is a showing of gross negligence, or a willful disregard for your daughter’s safety and well-being can the release be invalidated.
In this case the controlling issue is whether the school was negligent, and if so, to what degree. If gross negligence, or a willful disregard for your daughter’s safety and well-being can be proved, then it is arguable the school has a duty to pay for your daughter’s medical bills and resulting costs. This includes medications, casts, costs of treatment to and from treatment, lost wages if you had to miss work while caring for your daughter, and an amount for your daughter’ pain and suffering.
There are two sides to the issue of school playground equipment. On one side, playground equipment is meant to be a part of a student’s physical growth and health. On the other side, playground equipment can be dangerous. Usually climbing bars, swings, slides, and other school playground equipment can be hard, made out of metal, wood, or plastic.
There is no rule or law which sets out who pays first, and who pays last. The school’s policy may be to pay out after the parent’s insurance has paid the initial amounts. In the event you want to pursue a civil claim against the school, your interests and those of your daughter would be best served by seeking the advice and counsel of several personal injury attorneys in your area. Most will not charge for initial office consultation.
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.
Best of luck,
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