Canada: No Playing Around

An UPDATE on Tort Liability and School Yard Injuries

Introduction

With children just back to school, this article update¹ is a timely reminder of the potential litigation that can arise for school boards, students, and parents over playground incidents.

BrokenBones and Large Lawsuits

Our previous article covered a pushing incident on a Toronto Catholic District School Board ("TCDSB") playground in March 2015.² Two ten-year-old students decided to play a "game" with another student, where one of them pushed this student and the other kneeled behind his legs to trip him.³ This game resulted in the third student falling and breaking his arm. Eight months later, the mother of the injured boy filed a $600,000 lawsuit against the TCDSB and the two students involved in the incident. The TCDSB also crossclaimed against these two students.⁴

Discontinued... OrTo Be Continued?

Following our previous article, the mother of the injured boy discontinued the lawsuit in question. The TCDSB later discontinued their crossclaim against the two students.⁵ While some school boards, students, and parents may be relieved to hear this news, a discontinued claim should not lead them to believe similar claims will simply disappear in the future.

Earlier in 2018, there were reports of two separate $5.5 million lawsuits arising from playground incidents in New York. In the first case, a thirteen-year-old girl suffered injuries during a "schoolyard brawl" in Brooklyn. Reports circulated that the girl's family intended to sue the Department of Education for failing to protect her despite warnings about prior incidents with the other teen involved.⁶ In the second case, a six-year-old boy suffered repeated groin injuries during a recess game. His family filed a lawsuit against the Department of Education, stating the relevant school knew about the game but failed to intervene.⁷

Lessons Learned: Obtain an Insurance Policy

These recent incidents highlight that schoolyard injuries can still lead to lawsuits against any school board or students involved. The reality may have some people wondering how anyone could face a $600,000 lawsuit (let alone a $5 million lawsuit).

The Ontario School Boards' Insurance Exchange provided coverage for the TCDSB in the lawsuit arising from the March 2015 incident discussed above.⁸ Other school boards could have similar coverage for lawsuits arising from playground incidents.

Parents should review their homeowners or tenant policy to ensure that the policy includes adequate liability coverage for their family. These policies will often cover children who live at home with their parents. Those parents without a homeowners or tenant policy should consider obtaining one and are in fact being encouraged to do so by school boards like the TCDSB. These policies are often called on to respond to school yard injury claims and will help ensure that parents and students are not defending a massive lawsuit on their own. While children should have fun during recess and lunch, there should be no playing around when it comes to potential tort liability.

Footnotes

1 No Playing Around: Tort Liability and School Yard Injuries (McCague Borlack LLP, 2017).

2 Ibid.

3 Andrea Gordon, Schoolyard shove by two 10-year-olds leads to lawsuit, The Toronto Star (30 August 2017); Angela Mulholland, Why parents may need liability insurance to cover their children's schoolyard fights (CTV News, 1 September 2017).

4 Ibid.

5 Andrea Gordon, "Kids off hook in lawsuit over schoolyard shove that led to broken arm", The Toronto Star (27 November 2017).

6 Ben Chapman and Christina Carrega, Family seeks $5.5M after teen roughed up by mother, daughter in caught-on-camera schoolyard scuffle (New York Daily News, 31 March 2018).

7 A.J. Ross, Family files lawsuit after boy injured in schoolyard game in Brooklyn (ABC 7 New York)

8 Supra note 3.

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