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ARTICLE ID 191413

$________ School Liability – Metal chain to cordon vehicles away from students leaving creates dangerous tripping condition – Seven-year-old infant plaintiff trips – Fracture of the mid femoral diaphysis – Surgeries to install and remove hardware – Half inch leg length discrepancy – Surgical scarring.

Essex County, NJ

The plaintiff contended that the school improperly placed a chain, approximately one foot off the ground in front of one of the school exits in an effort to keep students away from cars entering/exiting the parking lot as teachers arrive and depart. The plaintiff maintained that that many of the young students disregarded the cordoned off area by jumping over the chain. The plaintiff argued that the chain thereby created an attractive nuisance for the school children. The plaintiff maintained that as the infant plaintiff stepped over the chain as she was walking with her father, her foot became ensnared in the chain which was approximately one foot off the ground and that she fell. The defendant contended that a palpably unreasonable standard should apply.

The plaintiff countered that the school should be held to a simple negligence standard. The plaintiff pointed to Caltavuturo v Passaic, ________ NJ Super. ________, ________ (App Div), certif. den. 63 NJ ________ (________)], which held that "In this State the duty of school personnel to exercise reasonable supervisory care for the safety of students entrusted to them, and their accountability for injuries resulting from failure to discharge that duty, is firmly established. This duty may be violated, not only in the commission of acts but also in a neglect or failure to act. The standard of care imposed upon school personnel in carrying out this duty to supervise is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances." The plaintiff also pointed out that although this case was decided before the Tort Claims act, it remains good law and was cited approvingly in Jenkins v Anderson, ________ NJ ________, ________ (________).

The plaintiff maintained that surgery was required to install hardware and that because of continuing severe pain, a second operation to remove the hardware was also needed. The plaintiff also contended that the fracture was near the growth plate resulted in an approximate one-half inch long discrepancy as found by the plaintiff’s examining orthopedist. The plaintiff maintained that this factor rendered the injury permanent as did the surgical scarring and that the plaintiff vaulted the Tort Claims Act threshold.

The defendant further argued unsuccessfully that the infant plaintiff’s medical specials of nearly $________ were inadmissible as they had all been paid by her mother’s health insurer. The plaintiff countered that under Sikes v Twp of Rockaway, ________ NJ Super ________ (App Div) affd o.b., ________ NJ 41 (________), paid med expenses are admissible, even in Tort Claims Act cases, and that the judge later molds the jury verdict to credit the defendant with the amounts paid by health or disability insurer.

The school board replaced the chain in question with a sliding chain link fence several months after the incident. The plaintiff would have countered any contention that the defendant did not have sufficient resources to render the area safer with this evidence.The case settled after jury selection for $________.

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