New York Injury Cases Against Schools Dismissed - No Liability When Sudents Hurt in Fights on School Grounds

Posted on May 16, 2009 by John Hochfelder

Parents are always telling their kids before they go off to school: study hard, obey the teachers and behave. Good advice, of course. But what happens when the little darlings do misbehave? When they fight with other schoolkids? And serious injuries result? Why, the parents "lawyer up" and sue the school district, naturally! But these cases are losers and the schools are wining dismissals repeatedly.

In the latest of these cases, MacNiven v. East Hampton Union Free School District, a fight broke out among high school track team members. Standing 20 feet away was another team member, soon to be plaintiff Cory MacNiven. Instead of going for help or just staying out of it, young Cory "jumped in" to the fight and kicked a teammate in the head. Then, surprise, Cory was punched in the face and injured.

Would you run towards a fight, or away from it?

In his ensuing lawsuit (technically, the parents' lawsuit because under New York's CPLR Article 12, when an injured party is under the age of 18 years, it's the parents who sue for him), plaintiff claimed that the school district was negligent in failing to properly supervise the team during practice. The appeals court disagreed and dismissed the case this week repeating the oft cited rule that

liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight.

The same voluntary participation in a fight on school grounds bars a lawsuit against the school district rule has been applied for many years:

  • Williams v. City (2007) - inadequate supervision claim dismissed in a fight between elementary school students in an auditorium because of voluntary participation in the fight by plaintiff
  • Danna v. Sewanhaka Central High School District (1997) - school could not have anticipated fight in music class between 12 year olds, especially where plaintiff voluntarily entered the fight and struck the first blow (a kick in the shin)
  • Ruggiero v. Board of Education of the City of Jamestown (1969) - suit by 17 year old high school senior for injuries from a fight over unassigned locker dismissed because plaintiff voluntarily squared off with another student and chose to expose himself to the dangers of a fistfight.

If you square up, you lose your case against the school.

 You'd think that parents of kids who start fights at school (or voluntarily jump into them) would be reluctant to start a lawsuit. Maybe it's bad advice from lawyers who don't know the state of the law, who haven't read up on these types of cases. Now, I know that facts unknown at the beginning can develop, change or surface that may account for why some of these dumb cases were started. But when it's perfectly clear that a student started a fight at school, or on his own decided to join one, then the New York courts will routinely dismiss the lawsuit.

Many argue that there are too many lawsuits like the ones discussed above, they are frivolous and there should as a result be a loser pays system. That's the type of system in effect in England and other countries where the loser of these types of lawsuits is required to pay the legal fees of the wining party.

The push for a loser pays system has been ongoing for some time now. An important study in favor was released recently by The Manhattan Institute's Marie Gryphon, supported by many including, of course, her think tank colleague  Walter Olson of Overlawyered fame.   Standing opposed to the loser pays system are trial lawyers representing plaintiffs, for example Atlanta attorney Ken Shigley here and Boston attorney Robert Feinberg here. Trial lawyer organizations such as American Association for Justice (formerly known as American Trial Lawyers Association) and New York State Trial Lawyers Association argue that there is no need for such a system as do blogs such as Tort Deform.

The battle lines are being drawn and there's a great deal of money being spent pro and con. The loser pays system may become the law in the U.S.

  • Would a loser pays system be beneficial for all concerned?
  •  What form would it take?
  • Could it be successfully challenged as unconstitutional?

These issues will continue to be discussed and even fought over as the push for loser pays intensifies.

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What are the Expenses I'll be Charged in my Personal Injury Case?

Posted on March 3, 2009 by John Hochfelder

Most personal injury case retainer agreements provide for a one-third legal fee contingent upon a recovery (by verdict or settlement) and will include language something like this:

The percentage fee is calculated on the net sum recovered after deduction for expenses and disbursements properly chargeable to the case such as investigation and expert fees.

So what's that mean?

It means that the expenses and disbursements (we'll give examples in a moment) are deducted from the total sum recovered from the defendant (and reimbursed to the lawyer who, after all, advanced those items out of his own bank account). The result is the "net" fee,  and it is a percentage of that lower figure on which your lawyer's fee is calculated.

  • Insider Tip #1: Your lawyer may not charge or take a fee in these cases that is one-third of the gross recovery and then have you the client reimburse him for his expenses out of your share.
  • Insider Tip #2 (You won't like this one): Your lawyer is not permitted to guarantee you that you will not be responsible to repay his expenses and disbursements, even if the case is lost. This would violate Judiciary Law 488 which prohibits lawyers from "buying" lawsuits. It's OK to take a case on a contingent percentage and to advance the disbursements (which are really client expenses) but telling a client he will never be liable for these disbursements is what's prohibited. The law aims to keep attorneys from using their own financial clout to compete for clients. [That said, I know of no lawyer who ever made serious efforts to get his disbursements paid by his client after he lost a case.]

So the one-third legal fee is on the net, fine. But what are the expenses and disbursements that are "properly chargeable?"

Let's get the easy ones out of the way first. Here are several typical plainly proper categories and also some typical amounts you might see on the closing statement. (The closing statement is what your lawyer files with the court system at the end of your case to advise the authorities of the recovery, his fee and his disbursements.):

  • court filing fees (e.g., $210 to start the lawsuit)
  • investigator (e.g., $250-$1,500 to take scene photos and get witness statements)
  • medical records (@$0.75 per page, this can be $100-$2,500 depending on treatment)
  • doctor's narrative report - ($500-$1,500 for your treating doctor to write a report detailing in lay terms your injuries, their causation and your prognosis)
  • deposition transcripts (approx. $5 a page, could be $500 -$2,500 depending on length and number)
  • experts fees ($2,000 -$15,000 or more depending on how many doctors testify for you in court and if other experts such as engineers, accident reconstructionists, etc. are needed that can drive up this cost many thousands more)

Here are expenses and disbursements that are plainly wrong and have resulted in lawyer disciplinary action:

  • financial assistance to the client for personal fiancial obligations (lawyer disciplined with public censure in Matter of Arensberg) 
  • charging client for non-existent expenses or for which the lawyer hasn't paid (lawyer disbarred in Matter of Mann)
  • making loans to client (lawyer suspended in Matter of Cellino)

Here are some other expenses and disbursements that have been held may not be charged to the client, but did not result in lawyer disciplinary action:

The key for clients is this:

Make sure your questions about expenses and disbursements are answered to your satisfaction, and that when you sign a contingency fee retainer agreement for your personal injury claim, it accurately and completely answers your concerns.

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