Second Department Overturns Negligent Supervision Case

The Appellate Division, Second Department, in Nelson v Friends of Associated Beth Rivka Sch. for Girls, has held that an emergency room record containing statements made by a preschool student, should have been admitted. This overrules a lower court ruling that the records were not admissible because of doubts regarding the validity of the student’s testimony at trial.

monkey bars.jpgLeah Nelson, a preschool student at Beth Rivka Preschool in Brooklyn, N.Y., was injured when she fell from equipment on the school’s playground. Her family sued the school in the Supreme Court of Kings County for damages, alleging that the school had not properly supervised Leah. The case hinged on whether Leah had fallen from the monkey bars, which the school admitted were not age appropriate for preschoolers, or from a ladder designed to be played on by younger children. The two teachers in charge of supervising preschool students on the playground testified at trial that the playground’s monkey bars are off limits to preschool-aged children, but that Leah had fallen from an orange ladder designed for younger children.

During the trial, Leah’s ability to accurately remember the accident and her credibility as a witness were questioned. The defendants questioned her as to whether she knew she was “going to have to . . . talk about the monkey bars” and whether she had been told “what to tell everybody.” The defendants also called into question whether she could remember the accident by entering into evidence statements made by Leah at her deposition saying that she did not remember, specifically, what she had been doing when she had been injured. In order to counter these contentions and prove that Leah had fallen from the monkey bars and not the ladder, the plaintiffs attempted to enter into evidence records made shortly after the accident. The records contained statements made by Leah to personnel at the hospital that she had been hurt falling from the monkey bars. The defendants claimed that because Leah had been coached as to what to say and did not remember what she was doing at the time of the accident, the emergency room records should be barred from being admitted into evidence.

Normally, once a witness has been impeached or found to be unreliable or unable to remember the relevant events, similar statements made out of court may not be admitted into evidence. Because of this legal precedent, the trial court did not allow the emergency room records to be admitted and the jury subsequently found in favor of the defendants.

However, in reversing the trial court’s decision, the Appellate Court, Second Department has held that because the defendants were claiming not only that Leah could no longer remember the accident, but also that she had been coached after the accident to tell the court that she fell from the monkey bars, evidence that she fell from the monkey bars created before she had any incentive to lie is admissible. Leah’s statements to the emergency room personnel recorded in the emergency room records, made shortly after the accident, should have been admitted because at the time she made them there was no incentive to falsify her testimony or opportunity to coach her. The appellate court also noted that the statements made by Leah to the emergency room personnel fall within a well-defined exception to the hearsay rule allowing for statements made out of court for the purposes of medical treatment to be admitted because they are presumed to be truthful. When statements are made, not with subsequent legal proceedings in mind but in order to further medical treatment shortly after an accident, they are considered more likely to be reliable.

The appellate court found that because the case hinged on whether the jury believed Leah’s testimony, not allowing the medical records to be admitted might have substantially altered the outcome of the case. Therefore, the appellate court reversed the trial courts decision and the case has been sent back for a new trial.

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