We get a lot of calls from parents whose children get hurt at school or in day care. Most often, their child fell on the playground or in PE class and broke an arm or leg. Sometimes the child isn’t covered by health insurance, and the parents want to know how they are going to afford the medical bills. Other times, the parents want to bring attention to the situation, so it doesn’t happen to someone else’s child.
We’re parents too. Children are always a worthy cause, and we want our schools to be as safe as possible. But whether we can help with your child’s injury case will depend on what actually happened.
Maybe. Maybe not. This can be considered a premise liability case depending on local laws. In Florida, the mere fact that someone gets hurt on someone else’s property or premises isn’t enough. In order to hold the school responsible for the child’s injury, we first have to prove that the school was “negligent”.
There’s not a universal list of bad acts that gives us an easy answer to this question. Ultimately, it’s up to the jury to decide whether the school acted negligently. In making that decision, the jury gets guidance from Florida Standard Jury Instruction (Civil) 401.4.
It defines negligence as “the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.”
In the school setting, we have seen negligence occur in two ways: negligence that causes the injury, and negligence that occurs after the initial injury, which makes the injury worse.
Sometimes the school did everything right, but the child still got hurt. For instance, a boy was running in PE class and simply fell, breaking his fall with his wrist. That’s not negligence. It’s nobody’s fault. It just happened. On the other hand, sometimes the school really messed up. The made one or more really poor choices, and as a result a child got hurt.
If you aren’t sure whether the school was negligent, start by asking yourself this question: “What did the school do wrong that caused the injury to occur?” If you can’t even answer the question, there’s not a legal case to pursue. But what if you can answer the question?
Here are examples of actual cases we’ve taken (and won) against schools:
Often times, the parents don’t call us because of the initial injury. They call us because they’re HOT MAD about how the school handled the situation after the injury occurred.
The story is almost always the same: “The school didn’t even bother to call to tell me that my kid got hurt!” “My child had to sit in school the rest of the day with a broken arm!” “They just sent him back to class!” “The school didn’t take it seriously!”
Perhaps the school did a poor job training their staff on how to handle these situations. Maybe they have a bad apple among their otherwise excellent and loving teachers. Either way, the parents often call us because of the way the school responded to the injury.
The examples above are what we would call bad business or poor leadership. However, sub-par responses to a child’s initial injury don’t lead to a legal case unless:
and
Let’s work off of the same example we used earlier. The boy is running in PE class. He falls and breaks his wrist. The school isn’t negligent. Yet.
Now suppose the boy with the broken wrist goes to the office. The person at the front desk doesn’t even bother to look at the child’s wrist. Instead, she gives him a small bag of ice and sends him right back to class. At this point, his pain is a 4/10. After PE, he has writing. He uses his hand (and, therefore, the broken wrist) to write for an hour. His wrist hurts much worse. His pain is a 7/10. Then he takes a test on the computer, which causes him to use his wrist even more. By the end of the day, his wrist is killing him. His pain is a 10/10. After school, he tells his mom what happened. She takes him straight to the hospital, and he ends up requiring emergency surgery because now his fractured wrist is completely displaced due to his continued use of the wrist after the initial injury. If we can prove the school’s unreasonable lack of action caused the child’s need for surgery, that’s a legal case.
Sometimes, there isn’t one singular failure that causes a child’s injury at school. Instead, there can be a combination of factors that work together to lead to a child getting hurt at school. Maybe the school was negligent, but the child also did something wrong. This is where the concept of “contributory negligence” or modified comparative negligence” comes into play.
A little background here is helpful. Until 2023, Florida was known as a “comparative negligence” state. This meant that an injured person could bring a legal case in front of a jury and recover for his injuries, even if he was mostly at fault for causing those injuries – even if he was 99% at fault for causing those injuries! The verdict would simply be decreased by the injured person’s percent of fault for causing his own injuries. For example, if the jury awarded a $100,000 verdict but determined that the Plaintiff (the injured person) was 60% at fault for causing his own injuries, then the judge would reduce the verdict by 60%. The Plaintiff would still recover something – in this case, $40,000.
But then came March 2023.
That’s when Florida’s Legislature passed The Florida Tort Reform Act of 2023 (also referred to as HB-837) which was immediately signed into law by Governor Ron DeSantis. This brought about many changes, each one aimed at making it harder for injured victims to succeed at trial against the wrongdoer.
Under Florida Statute 768.81, an injured party can still bring a legal case before a jury even if he is partially at fault for causing his own injuries, but if the jury determines that he is greater than 50% at fault, he is not allowed to recover anything.
To demonstrate how the new law effects child injury cases, we’ll use another hypothetical. Assume a school slide is in disrepair. Pretend it’s cracked in the middle and ready to collapse at any second. The school officials know it. A reasonably careful school administrator would have the slide immediately repaired or, if that weren’t possible, remove the slide from the playground. In our hypothetical, pretend the school doesn’t do either of those things. Instead, the principal blocks the slide from the top with a single strip of yellow caution tape. We would argue this is negligence. The school official has failed to take action that a reasonably safe school official would take in this situation.
Now suppose before going to recess, a teacher sternly warns her students not to use the slide. “It’s very dangerous”, she says, “and if you use it, you will fall and get hurt!” Tommy is bummed – the slide is his favorite part of the playground.
While at recess, Tommy notices the teacher tending to another child. Here’s his chance! Tommy climbs the ladder, pulls the caution tape aside, and begins to slide down. The slide breaks in half, Tommy falls and shatters his ankle.
We’ve already established the school is negligent. Let’s assume the jury agrees. The next question the jury has to answer, then, is whether Tommy himself was also negligent.
The answer will depend, first, on Tommy’s age. In Florida, a child under six years old cannot be found legally negligent. However, if Tommy is six years old or older, a jury is allowed to assess whether he was negligent. Here again, the Florida Standard Jury Instructions for civil cases will help guide the jury. Instruction 401.5 says “reasonable care on the part of a child is the care that a reasonably careful child of the same age, mental capacity, intelligence, training and experience would use under like circumstances.”
In other words, the jury will compare Tommy’s behavior and decisions to what they think the behavior and decisions of a reasonably careful, similarly situated child would be. If Tommy is eight years old, they should not compare Tommy’s actions to a sixteen-year old’s actions. If Tommy is a neuro-diverse child, the jury should notcompare Tommy’s actions to those of a typical child his age.
If the jury determines that Tommy was negligent, they will next have to apportion the negligence as between the school and Tommy. In other words, the jury is tasked with deciding what percent of fault for the injury should be attributed to the school, and what percent of the fault for the injury should be attributed to Tommy. The total must be 100%. Previously, if the jury determined Tommy to be 60% at fault for his own injuries, his parents could still recover 40% of his damages. After March 2023, that’s no longer the case. If the jury determines Tommy is more than 50% at fault for his own injury, then pursuant to the new Florida Statute 768.81(6), his parents cannot recover anything for him.
Is that fair? Should Tommy be held responsible for his bad decision? Sure. And under the old law, he was – because his verdict was reduced accordingly.
But what about the school? Under the new law, even though the principal made a terrible and unsafe decision by allowing the broken slide to remain accessible to the children, nothing happens. Even though a jury determined the school acted negligently, the school is not held responsible. There is no accountability, and the school doesn’t learn a lesson.
Call Neal & Solevilla if you think your child’s injury might have been due to the school’s negligence. If the school was indeed at fault for your child’s injury, we won’t stop fighting. Your child is worth it. What’s more, each time we win a school injury case, it makes the schools in our community a little bit safer.
A school may be liable if negligence contributed to the injury, such as inadequate supervision, unsafe premises, or failure to address known hazards.
Seek medical attention, document the injury, request an incident report, preserve evidence, and consult an attorney if negligence may have contributed to the injury.
Public schools may be held responsible under certain circumstances, although claims against government entities often involve special rules and deadlines.
Examples include playground injuries, sports injuries caused by inadequate supervision, unsafe property conditions, and incidents involving known safety risks.
Deadlines vary depending on whether the school is public or private and the facts of the case.
This article is for general information only and does not constitute legal advice. For advice on a specific situation, contact Neal and Solevilla for a free case review.
