In this Blog category you will find articles about Child Injury Accidents and how to avoid them. Personal Injury suits and insurance claims may require the help of an attorney. A good lawyer can protect your rights under the law.
Determining who might be responsible for an injury that occurred in a child’s school playground is often difficult. Even if the school or a school employee didn’t directly cause the injury, the school district might be legally responsible, and obtaining just compensation can be challenging.
Playground injuries are usually due to either poor maintenance or design of playground equipment or lack of adequate supervision. If another child injured your child on a school playground, the other student or parents may not be responsible. If a teacher failed to provide adequate supervision, the school district would be at fault. Likewise, if your child was injured in a school bus accident caused by the driver of another car, the school district might be considered negligent.
School Districts Share Sovereign Immunity with Governments
School districts, like the federal government and all branches and agencies at the state, county, and municipal level of government, enjoy what is called “sovereign immunity,” which means that they can’t be sued except under specific circumstances. To make a case to receive compensation for your child’s injuries, you must bring a civil suit in court against the school district. You may need legal assistance with this. If your child attends a private school, the grounds for filing suit might involve breach of contract. Otherwise, private schools are generally subject to the same laws as public schools if they receive any form of federal funding.
Initiating a Claim Against a School District
Before a lawsuit can be filed against a school district, most states require that you file a formal written claim with the school district’s clerk or other specified official of the school district no more than 60 to 90 days after the injury. The claim must describe the nature of the incident and injuries to the student, so that the school district can investigate the incident. In most states, failing to file a claim within the required time period will prevent you from later filing any type of lawsuit in court against the school district. Once you have filed the claim, you must wait until either the school district has denied the claim or a certain amount of time (typically three to six months) has passed without any action by the school district.
After you have filed with a government administrative agency to “exhaust the remedies” that are available to you, the administrative agency may
Following incidents of broken welds causing children to suffered finger amputations, the Consumer Product Safety Commission (CPSC) on December 7, 2016 issued a recall of the Lightning Slide stainless steel playground slide manufactured by Playworld Systems, Inc,.
About 1,300 Lightning Slides, manufactured in the United States by Playworld Systems, Inc. of Lewisburg, PA and Horizon Industries, of Columbia, PA, have been sold by independent distributors over the last sixteen years with stainless steel welds attaching the bedway to the sidewalls that can crack and separate, allowing a child’s fingers to get caught in the space.
Playworld Recalls All Lightning Slides Sold in Past Sixteen Years
All of the 1,300 slides, sold to schools, parks and government entities across the country between November 2000 and October 2016 for between $1,500 and $4,000, have been recalled due to the defect. Playworld and CPSC warned organizations that purchased the affected slides to immediately stop allowing their use, to prevent exposing children to risk of amputation and laceration injuries.
Because there is no manufacturer information on the defective slides, the CPSC warned parents and caregivers to be extremely cautious when allowing children to use metal slides at public or school playgrounds, and said the stainless steel slides may have single or double bedways and could be attached to a playground system or stand alone.
Playworld Systems is handling the recall, offering a free replacement slide and free installation. “A temporary barrier will be shipped to consumers prior to shipment of a replacement slide to prevent children from using the slide,” CPSC’s notice said.
CPSC Fast Track Recall Process Encourages Playworld Voluntary Recall
CPSC tells customers to immediately stop using the recalled slides and contact Playworld at 800-233-8404 from 8 a.m. to 4:30 p.m. ET Monday through Friday, email firstname.lastname@example.org or online at https://playworld.com/ and click on “Slide Safety Recall Information” for replacement slide information.
Playworld is also contacting consumers who purchased the affected slides directly. Playworld’s voluntary recall was encouraged by the CPSC’s “Fast Track Recall” process, meant to speed up recall announcements to protect consumer safety.
Despite mounting evidence that padded crib bumpers, designed to keep a baby from hitting her head on crib slats, are a suffocation hazard and may be linked to Sudden Infant Death Syndrome, in September 2016, Consumer Product Safety Commission (CPSC) staff released an analysis of child deaths associated with crib bumpers that was scientifically questionable, and inappropriately came to the conclusion that it should not take any action on these products.
American Association of Pediatrics Issues Policy Statement on Crib Bumpers
Multiple safe sleep experts, including Rachel Moon, MD, FAAP , lead author of American Academy of Pediatrics’ (AAP) October 24, 2016 policy statement, “SIDS and Other Sleep-Related Infant Deaths,” reviewed the CPSC’s evidence and found the CPSC’s analysis and conclusion flawed. “Because there is no evidence that bumper pads or similar products that attach to crib slats or sides prevent injury in young infants, and because there is a potential for suffocation, entrapment and strangulation, these products are not recommended,” the AAP’s statement concluded.
American Journal of Pediatrics Article Reaffirms Crib Bumper Danger
In November 2016 the American Journal of Pediatrics (AJP) published an article written by Bradley T. Thatch, M.D., George W. Rutherford, Jr., M.S., and Kathleen Harris, of the Washington Department of Pediatrics, St. Louis, Missouri titled “Deaths and Injuries Attributed to Infant Crib Bumper Pads.” Analyzing the CPSC’s database for deaths related to crib bumpers for the years 1985 to 2005, the authors found that, between those years, 27 children from 1 month to 2 years old died from suffocating or strangling related to crib bumpers. The authors also searched other Consumer Product Safety Commission databases for crib-related injuries that potentially might have been prevented by bumpers, and examined 22 retail crib bumpers and described features that could be hazardous. “These findings suggest that crib and bassinet bumpers are dangerous. Their use prevents only minor injuries. Because bumpers can cause death, we conclude that they should not be used,” the article stated.
CPSC Delays Banning Crib Bumpers
Although the Consumer Product Safety Commission acknowledges the danger that crib bumpers pose, it has stopped short of banning the products, and instead places the responsibility on the parent or caregiver rather than the manufacturer. “We strongly warn parents and caregivers not to use padded crib bumpers. . . We strongly believe that the risk of death from padded crib bumpers
On May 5, 2016, the Oregon Supreme Court put the nail in the coffin of a personal injury case that has been brewing since 2011, when the parents of a Klamath Falls boy were awarded a mere $3 million in damages for multiple life-threatening surgeries their son endured at the hands of Oregon Health & Science University physicians. The case: Horton v. OHSU. The outcome: Oregon Supreme Court upholds $3 million cap on damages against the state.
The Story behind Horton
In Horton v. OHSU, plaintiffs Steve and Lori Horton (now Lori Spiesschaert) sued OHSU and the physicians responsible for their son’s surgery for medical malpractice. The surgery, which took place in 2009, nearly took his life at just 8 months old. Speisschaert felt a lump on her infant son which led to the discovery of a malignant tumor on his liver. The boy was taken to OHSU to have the tumor removed. OHSU and the physicians both admitted to liability for what took place.
The two surgeons providing care accidentally snipped key blood vessels, leading to liver failure. It took up to 45 minutes for them to realize this. The boy was taken to OHSU two more times for surgeries that caused further harm. Two days after the final surgery, OHSU arranged for the family to fly in an air ambulance to a children’s hospital at Stanford University in California for life-saving treatment. The surgeons at the California hospital were successful in transplanting a piece of the mother’s liver to save his life. Over the course of three months, the child would undergo 4 more surgeries fighting for his life. Two years later, OHSU paid the $3 million that was the maximum allowed under the Oregon Tort Claims Act ORS 30.260, which caps judgments against public entities like OHSU and state employees.
Despite the $3 million, the family came up short on their Stanford medical bills, which amounted to $5 million. None of this was covered by insurance by the way; as as soon as the insurance companies discovered the medical bills were due to negligence they started demanding the family pay them back. The $3 million were divided between Stanford, paying back the insurance companies, lost wages, and several other expenses.
After a few months, the family sued OHSU and the surgeons responsible a second time. OHSU had never disputed that
The Centers for Disease Control (CDC) estimates that more than 60,000 children and adolescents are hospitalized annually in the United States after sustaining moderate to severe brain injuries from motor vehicle crashes, falls, sports and physical abuse.
Children with Unidentified TBI Miss Special Ed Services
Damage from a TBI may be subtle and often goes undetected. If an injury occurred in infancy or before a child reaches school age, parents may not realize there could be a connection with the injury and learning and behavioral problems when the child enters school. When the information about an injury does not follow a child through his or her educational career, as frequently happens when a child moves from school-to-school, the child either does not receive special education services at all or receives services for a disability other than TBI.
Brain Check Survey Detects Hidden TBI
Because neither a parent nor doctor can tell the full extent of an injury at the time of the injury, school personnel must know how to look for subtle and longer-term effects on any student who has suffered a traumatic brain injury. In a case when there are symptoms but no known TBI, the school must be able to identify the injury to properly place the student in special education services.
Researchers Pat Sample and David Greene, both faculty in Colorado State University’s Department of Occupational Therapy, have developed a screening tool, called a Brain Check Survey, to detect a past TBI in school age children. Donna Detmar-Hanna, occupational therapist for the Poudre School District in Colorado reports that, to date, the Brain Check Survey has been used to screen around 10 to 12 students, and has been helpful in connecting past brain injury with present symptoms and behaviors.
Previously, a student needed to present an official documentation of a medical TBI diagnosis to be placed into special education with a TBI categorization. Now a few states will accept evidence of credible TBI history instead of medical diagnosis, which may be absent, and the results from Sample and Green’s Brain Check Survey can be offered as evidence of a past TBI.
Schools Best to Identify TBI and Follow Student Progress
The seriousness of a brain injury can best be determined by the effect it has on physical health, learning, behavior, and social development, and schools can watch these children for years and decades.
Schools need to:
The U.S. Consumer Product Safety Commission’s Handbook for Public Safety estimates that more than 200,000 children each year are injured on playground equipment, and the cause is most often due to lack of adult supervision.
The National Program for Playground Safety (NPPS) says that nearly 40 percent of all playground-related injuries each year can be attributed to inadequate supervision, and recommends that the playground supervision ratio be equal to the indoor classroom ratio.
PTAs Step Up to Help Schools
As schools try to do more with less, concerned parents through PTAs are working with school officials to help improve playground safety.
Adults assisting on school playgrounds need playground safety training to understand supervisor responsibilities and know playground rules. They should be able to perform a daily check to make sure that equipment is not broken, surfacing is at the proper depth under the equipment, and that no trash is found on the ground.
Safer Playground Equipment Design and Maintenance
Playground equipment with crawl spaces, tunnels, and boxed areas need some type of transparent material present to allow a supervisor to see a child inside the space. Adult supervisors should bring reports of broken equipment and hazardous surroundings and surfaces to the attention of the school district to make repairs.
Rules and Guidelines for Playground Equipment Safety
The NPPS believes that all states should adopt the guidelines of the Consumer Product Safety Commission (CPSC) or the American Society for Testing Materials (ASTM). The CPSC has created guidelines for both public playground and home playground equipment. The ASTM develops over 12,500 voluntary consensus standards, some of which deal with playground surfacing and equipment.
Only a Few States Make the Grade
At this time, only states Arkansas, California, Connecticut, Florida, Illinois, Michigan, New Jersey, North Carolina, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, Virginia, and Wyoming have adopted all or parts of CPSC or ASTM guidelines. NPPS gives a grade of B for the states that have adopted the CPSC guidelines, and gives a C grade to those states that have not adopted the CPSC guidelines.
Yes, I’m a lawyer, but in a former life I was a YMCA boating instructor, camp counselor and life guard. In that context safety was front and center. Sadly, I have seen safety take a back to recreation as children become young adults… until tragedy strikes.
Memorial Day weekend will be here in a few days so NOW is a great time to remind all my friends and clients that “an ounce of prevention is worth a pound of cure.” Keep in mind that most safety rules were enacted in response to serious injury. Here I focus on Oregon boating safety rules, precautions and insurance.
1. Oregon Boating Safety Certificate
All persons operating a boat of 10 horsepower or more must take an Oregon approved boating safety course and carry a boating safety card. It only costs $10! The course is $25.50. Here is the link to get a boating safety card which does not expire. (Note a boating safety card is not a boating license). See ORS 830.086.
2. Drinking and Boating
Operating a boat while under the influence of any intoxicant is illegal. ORS 30.325. Also the owner of a boat is responsible for negligent operation of a boat just as an owner of an auto would be. ORS 30.330. Reckless operation of a boat is aslo prohibited in Oregon waters. ORS 30.315.
3. Boating Accidents
Oregon law requires boaters to promptly respond and report boating accidents. ORS 830.475. Also promptly report any boating accident to your boat insurer. If an accident happens, you must provide your NAME, ADDRESS, and BOAT ID # to all occupants of THE OTHER BOAT. In Oregon you must AID THOSE HURT by towing their boat to shore if needed and helping the injured get medical help. ORS 830.475. You must file a boat accident report for all boating accidents involving injury or property damage over $2k.
4. Boating Insurance
Your auto insurance probably only covers you when you are tailoring your boat. Purchase boating insurance to cover damage to your own boat as well as damage caused by your liability to others. Different types of boats (Ex. Wave runner v. sailboat v. motor boat). It’s best to purchase boating insurance from an agent who is knowledgeable about your boat and your exposures. Boating insurance, unlike Oregon auto insurance, does not require no fault medical insurance. Discuss the need for medical
In the best-selling book Freakenomics, authors Steven Levitt and Stephen Dubner challenge “conventional wisdom” with statistics. In one example, Levitt and Dubner consider the parents of an eight year old girl, Molly. Molly’s parents prohibit her from visiting her friend Amy because Amy’s parents keep a gun at home. So instead, Molly spends time playing in the swimming pool at the home of her other friend, Imani.
Molly’s parents are pleased with themselves for making such a smart choice. According to “conventional wisdom” children should not play where guns are around. The authors point out that according to the data, what seems smart may not be. In any given year one child drowns for every 11,000 residential pools in the U.S. Read that again. 1 drowning for every 11k pools. That is a lot, roughly 550 children under age 10 per year!
By contrast, the likelihood of death by gun is a relatively tiny 1 in over on million. Molly is far more likely to die from an accident at Imani’s home than from gun play at Amy’s.
Don’t get me wrong. This is not an advertisement for guns. Instead, the purpose of this post is to alert parents of just how dangerous unsupervised swimming is, especially for young children.
Keep a cool head while it’s hot outside. Make sure your young child is properly supervised while swimming.
Richard Rizk is now admitted to the Washington State Bar. He is also licensed to practice law in Oregon, Federal Court (9th Circuit), Oregon District Court and Illinois (currently inactive). Mr. Rizk became familiar with Washington insurance laws as a high level claims analyst in the 1990s working to resolve environmental insurance coverage disputes involving insureds including Cadet Manufacturing, Port of Vancouver and Dairygold.
During the height of football season in October 2014, the nation was forced to accept the sobering fact that football is a dangerous sport and high school football should either be modified or eliminated altogether. In just one week, three high school football players in three different states suffered brain injuries during a game and died.
In the words of one father, “No coaching technique can result in safety when the point of playing defense is to play with reckless abandon. The kids today call it blowing people up. The game is violent, and people get hurt in violent games.”
Doctors Emphasize Vulnerability of Young Developing Bodies
High school football concussion rates are 78% higher than in college, according to the Institute of Medicine, and doctors are adding their input. Dr. Robert Cantu, a neurosurgeon and concussion expert at Boston University’s Center for the Study of Traumatic Encephalopathy, has advocated for banning tackle football for children younger than 14 because “the young brain is much more susceptible to the shock associated with concussion.”
Robert Stern, professor of neurology and neurosurgery at Boston University School of Medicine, says “The 16-year old brain is still developing. It’s a vulnerable brain, in many cases being struck by big, adult-sized bodies.”
High school players also have weaker neck muscles than college and pro players causing a “bobblehead effect,” says Jamsid Ghajar, professor of neurosurgery at Stanford University School of Medicine. “The whiplash motion causes the jostling of the brain that leads to concussions and worse.”
Recent Steep Decline in Number of Young Football Players Despite NFL Efforts
To keep kids in the game, the NFL initiated the Heads Up Football program. Coaches are educated on how to deal with concussions and how to teach safer ways to tackle, where players are taught to keep their heads up and to lead contact with their shoulders, not their heads. But is it enough.
A recent poll conducted by HBO Real Sports and Marist College Institute for Public Opinion found that one in three Americans say knowing about the damage that concussions can cause would make them less likely to allow their sons to play football. Nearly 1 in 4 Americans believe the risk is too high.
Football has seen a steep decline in the number of young people playing the game. According to a report last November from ESPN.com, Pop Warner youth football leagues saw a participation drop