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ARTICLE ID 43656

- SCHOOL BOARD NEGLIGENCE - NEGLIGENT SUPERVISION - FIGHT BETWEEN STUDENTS RESULTING IN ALLEGED EXACERBATION OF PREEXISTING EYE PROBLEMS - DETACHED RETINA AND ALLEGED DETERIORATING EYESIGHT.

Kings County

This was a negligence action against the New York City Board of Education for alleged injuries sustained by a 15-year-old student in a fight with a fellow student. The plaintiff, a student at Intermediate School 55 in Brooklyn, was in her last period of the day when other students took away her textbook and started to pass it around. The teacher advised the student with the book, a female named Richards, to return the book to the plaintiff. Richards tossed the book at the plaintiff. The teacher sent Richards out of the classroom. When the dean of the school saw Richards in the hallway, he advised her to return to the classroom and to apologize to the plaintiff. This was done. However, the students then returned to homeroom. According to the homeroom teacher, the plaintiff hit Richards and a fight ensued between Richards and the plaintiff. The homeroom teacher at that point went to the telephone to summon help. The plaintiff alleged that Richards landed the last punch in the plaintiff’s eye causing a detached retina and resulting in deteriorating eyesight. The plaintiff sued the Board of Education and alleged negligent supervision, specifically that the fight begun in the last period of the day was continuous and culminated in the fight in the homeroom. The plaintiff maintained that the Board was negligent through failure by the first teacher and the dean to notify the homeroom teacher of the continuing fight. The defendant argued: (1) that the fights were two separate incidents and that the first fight had been properly resolved when the first teacher had sent Richards out into the hall and the dean had advised her to apologize to the plaintiff; and (2) that the plaintiff was a willful and active participant in the fight. The Board of Education moved for summary judgment dismissing the action on the ground that the law holds that an action against the school board for negligence cannot be maintained if the injured student actively participated in a fight. That motion was denied.

The plaintiff suffered from serious eye problems before the incident. She underwent three eye surgeries for the treatment of glaucoma, cataracts, lazy eye, wandering eye, microcornea, and microphthalmia. She wore eyeglasses beginning at the age of 18 months. Subsequent to, and as a result of the fight, the plaintiff underwent surgery to reattach the retina. She alleged that as a result of the exacerbation of her eyesight, she now had to sit closer to the blackboard in school. The defendant argued that it was impossible to distinguish how the incident had worsened the plaintiff’s eyesight. The defendant further argued that someone with poor eyesight such as the plaintiff should make every effort to avoid getting into fights. The plaintiff’s examining ophthalmologist opined that she could not causally relate with certainty to the effect of the fight in worsening the plaintiff’s eyesight. The defendant’s expert ophthalmologist concurred that although the plaintiff’s vision was regrettably poor, he could not distinguish the effect of the fight.

The plaintiff’s education expert opined that the dean should have advised the homeroom teacher of the fight that occurred in the previous class. The defense counsel elicited, on cross- examination, that the expert had not taught in twenty years and had then only taught in small, rural schools and not in inner- city schools.

The homeroom teacher testified that she saw the plaintiff hit Richards first, that she then ran to the telephone to summon help, but that the fight happened too quickly for help to arrive.

The plaintiff demanded $________. The defendant made no offer. After a one-week-trial and after deliberating for one hour, the jury returned a defense verdict.

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