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CPLR §2221 and 4404(a) …cont

The Board also recognized the potential danger to teachers and employees such as plaintiff by limiting class sizes to no more than twelve (12) students who exhibited adverse social tendencies such as engaging in physical assaults. The presence of a security guard in the cafeteria, the site of the initial physical engagement between the two students, one of whom was part of the twelve students assigned to the calss teacher clearly is a recognition by the Board that inaction could lead to harm to teachers and plaintiff. However, no guard was present in the cafeteria where the student remained with his teacher, after he left the cafeteria with the twelve (12) students and the class teacher. Moreover, no evidence was offered by the Board explaining the student’s ability to move freely about the school without supervision.

Plaintiffs’ expert, testified that the school administrators, including the principal and assistant principal, departed from accepted educational practices and established administrative procedures by failing to provide for the orderly supervision of students when moving from the cafeteria to their class room nor were procedures implemented by the school administrators to prevent students from roaming freely about the school. In addition, plaintiffs’ expert testified that procedures were not in place to have paraprofessionals in the cafeteria when the fighting incident occurred or to monitor the whereabouts of students who had engaged in physical contact with other students causing personal injury.

The jury in the case at bar found defendant negligent in failing to prevent the student, from leaving the cafeteria and that defendant’s negligence was a proximate cause of plaintiff’s injury. The jury’s verdict found the Board of Education negligent in failing to prevent the student, Mr. Peal, who left the cafeteria unattended to continue his fight with the student in the teacher’s class and that such negligence was the proximate cause of plaintiff’s injury. The jury then awarded plaintiff $ 100,000 for past pain and suffering and $300,000 for lost wages. However, the jury failed to award damages for future pain and suffering and failed to provide a recovery for future lost wages even though plaintiff had a work life expectancy of 11 years. In addition, the jury refused to compensate plaintiff’s husband for past loss of services and loss of society of his wife.

Obviously, the jury concluded that plaintiff was injured as a result of her fall on the landing in the school where she worked as a counselor. The jury’s failure to award future damages, and future lost wages and their conclusion, by not awarding plaintiff’s husband damages for loss of consortium, is contrary to a fair interpretation of the uncontroverted evidence and constitutes a material deviation from what would be reasonable compensation. No medical evidence was offered by defendant to refute evidence by him that she is incapable of returning to work. A jury’s verdict may be set aside and a new trial granted when the jury’s determination is palpably incorrect and a substantial injustice would occur would the verdict be sustained.

To Be Cont…

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