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ARTICLE ID 32253

$________ PRESENT VALUE - SCHOOL DISTRICT NEGLIGENCE - SCHOOL LIABILITY - NEGLIGENT SUPERVISION OF 5-YEAR-OLD SPECIAL EDUCATION STUDENT - SKULL FRACTURES - CERVICAL INJURY RESULTING IN NERVE PALSY IN AREA OF MOUTH - PROSPECTIVE FACIAL ASYMMETRY - DISFIGUREMENT - MODERATE ONE-SIDED HEARING LOSS.

Middlesex County

In this action, the plaintiff contended that the defendant teachers and Board of Education were negligent in failing to provide adequate supervision and in keeping a four-foot-tall TV cart with a 26-inch TV on top in the classroom despite warnings from the cart manufacturer contained on the cart that children under 16 should not be permitted to move the cart when a television was on it and despite the fact that the TV had formerly been kept out of the classroom when not in use. The plaintiff contended that as a result, the male infant 5-year-old plaintiff grabbed the cart, moved it, and the 50-lb. TV toppled, striking him on the head. The infant plaintiff suffered bilateral skull fractures and an injury to C-6 in the area which innervated the mouth. The plaintiff contended that he will permanently suffer numbness in the area and an uneven smile, and that because the injury will retard growth, he will ultimately suffer facial asymmetry. The plaintiff also suffered some degree of a hearing loss on the other side. The evidence disclosed that prior to the incident, the child had been classified as mildly autistic and was in a special education class when the accident occurred. The infant plaintiff had subsequently been reclassified as suffering Attention Deficit Disorder by the Board of Education.

The plaintiff established that in conjunction with a Consumer Products Safety Commission Safety Bulletin in ________, which was prompted by similar toppling incidents, the manufacturers of these and other carts had issued warning labels advising against permitting children under the age of 16 to move the carts when TVs were present on them. The evidence disclosed that the subject TV was only used during a specified one-hour period each week.

The plaintiff established that up until three months before the incident, the TV and cart had been kept locked in a closet outside of the classroom when not in use. The plaintiff contended that approximately three months earlier, the defendant inexplicably began keeping the cart and TV in the classroom at all times. The plaintiff argued that in view of the fact that the dangers were the subject of warnings clearly marked on the cart, the defendant should not have permitted the TV to be kept in the classroom when not in use and that the defendant should have continued the safer practice of keeping the cart out of the room when not in use. The plaintiff also elicited testimony during the deposition of the principal that his own rules precluded the children from moving such carts because of the dangers of toppling.

The defendant contended that it had provided adequate supervision, pointing to the fact that there was a ratio of three adults to four children in the classroom, which exceeded the state special education requirement of no more than two children per adult. The defendant maintained that the happening of the incident in-and-of itself did not reflect negligent supervision.

The plaintiff countered that in view of the clear hazards of toppling which prompted the warnings to be placed, the teacher should have kept a close eye on the cart and could have easily prevented the infant plaintiff from playing with it.

The infant plaintiff suffered bi-lateral skull fractures. The plaintiff maintained that he sustained a moderate mid-level conductive hearing loss on the left side which is permanent in nature. The plaintiff also contended that the nerve palsy created permanent numbness on the right side of the mouth which creates difficulties eating. The plaintiff maintained that the child will also have permanent difficulties smiling. The plaintiff’s neurologist and the plaintiff’s plastic surgeon each contended that the growth of this area of the face will be affected and that as a result, the child will suffer a very significant condition of facial asymmetry as he gets older. The plaintiff’s plastic surgeon contended that the cosmetic deficit will probably be very significant and that plastic surgery will probably not help. The physician related that a procedure in which supports are inserted could provide some improvement, but that the child will permanently suffer a significant defect.

The plaintiff also contended that it is likely that the trauma caused some degree of a cognitive deficit. The defendant denied that this plaintiff’s position should be accepted. The evidence revealed that although the child had been classified as autistic prior to the incident, his social skills and educational achievement had actually improved and that he had been reclassified with Attention Deficit Disorder. The plaintiff would have argued that in view of this factor, it was clear that the child will be able to appreciate the nature of his injury and suffer the psycho-social consequences of the facial asymmetry.

The case settled prior to trial for a cash value of $________ which will be placed in a structure with a 30 year minimum and a payout of approximately $________ million over the course of his life expectancy.

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