May 14, 2020

DSB was successful in having a complaint dismissed against our 17 year old client with special needs, who was sued due to alleged harmful physical contact between our client and her “one on one” aide in school. Plaintiff alleged the special needs student acted out and fractured Plaintiff’s jaw when plaintiff instructed her to go to class.

A mentally challenged individual may be liable in negligence even though she lacks capacity to understand or control her actions. However, we argued that the record in our case established, as a matter of law, that our client lacked the capacity to be governed by any standard of culpability. In the alternative, we argued that plaintiff implicitly assumed the exact risk that caused her injury, a doctrine that can and should apply in the professional arena as well the more commonly applied sports scenario. The court determined that we sustained our burden of demonstrating the absence of a triable issue of fact, holding that given the testimony offered in support, the child had no duty to plaintiff. The court did not expressly determine that plaintiff assumed the risk, but noted that plaintiff was enlisted to assist in addressing conduct which was the reason for her assignment. Case dismissed.

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