When a schoolyard shove leads to a $600,000 lawsuit
Parents should be aware of liability risks after incident left child with broken arm, trustee says
It was an icy day in March 2015 when two 10-year-olds at a Toronto Catholic school engaged in a pushing prank that went wrong. Their shoves sent a classmate toppling to the ground, causing him to break his arm.
Two years later, the two children have been named by the school board’s insurer in a lawsuit arising from the incident, raising alarm about legal liability of students involved in schoolyard skirmishes.
In the wake of the case, trustee Mike Del Grande wants the Toronto Catholic District School Board to advise parents of the risks of lawsuits and to make sure they have liability coverage as part of their property insurance.
“This is the litigious atmosphere we’re in now and this is a warning that you should check your insurance policies,” he told the Star.
“It’s ludicrous to put parents in that type of position. It’s unfair, it’s unconscionable.” MIKE DEL GRANDE SCHOOL TRUSTEE
“This stuff can go on and it’s under the radar and nobody knows about it until they’re in it.”
Standard policies for homeowners, condo dwellers and tenants typically include liability coverage for policyholders and their children.
It’s a sobering example of what can happen, even between children who are classmates and attend each other’s birthday parties, said Del Grande, who learned about the situation from the parents of the two children named in the lawsuit.
“It’s ludicrous to put parents in that type of position. It’s unfair, it’s unconscionable,” he said.
Parents of both children, a boy and a girl who were in Grade 5 at the time and are starting Grade 8 next week, confirmed details in conversations with the Star on condition that neither they, their children nor the school were named.
One of the children was interviewed by his family’s insurance adjustor this summer after notice that the school board’s insurer had filed a cross-claim for damages against both kids. He was asked to recall events from more than two years earlier.
The other mother said her family does not have liability coverage.
Experts in insurance law say although the action may seem shocking to many, naming minors in lawsuits is not uncommon and is usually aimed at triggering a parent’s insurance policy to cover costs of a settlement. The statement of claim in this case alleges that on that March day in 2015, the two kids had been going around the schoolyard pushing other children. When they approached the boy, he told them he didn’t want to be pushed, but they did it anyway. The fall broke his upper arm.
In an interview, the mother of one of the kids described it as “a game” among students in which one person crouches behind the victim and another one pushes them, sending them falling backward. Both parents said their children had not intended to cause harm. When it became apparent the boy was hurt, the boy involved in the pushing helped take him to the school office, his mother said.
They found out the next day the boy’s arm was broken.
The parents were contacted by police after the incident was reported, but no charges were laid, said one of the mothers. The injured child left the school before the end of the year, she added.
Two months after the incident, she said her family received a series of lawyer’s letters indicating her son would be held responsible and suggesting they advise their insurer.
The injured boy suffered “great pain” as a result of the broken arm, while his mother was forced to take time off work and pay for child care and medical expenses as a result of the injury, lawyer Jane Lo of Toronto firm Klaiman Edmonds wrote in one letter on behalf of her client.
“I have instructions to resolve this dispute in the amount of $5,000 in exchange for not naming (the boy) in the action,” Lo wrote in another letter, dated June1, 2015. “My client will be willing to provide a release for that purpose.”
The family did not respond to that proposal or follow-up letters, including one in July that warned if they failed to do so “we may commence a lawsuit without notice to you.”
When they heard nothing further, they figured the matter had “blown over,” his mother said.
Asked about the letters on Tuesday, Lo told the Star her client “felt that there was liability on the part of the children and we wanted to see if there could be a quick resolution. Unfortunately, they didn’t accept the offer and we had to continue on with the action.” She declined to comment further. The families of the two pupils said they were not informed when, eight months after the incident, in November 2015, the injured child and his mother filed legal action against the school, its principal and the Catholic board, seeking a total of $600,000 in general and special damages, plus costs.
They said they didn’t find out there was a lawsuit until March 2017, after receiving notice that the injured boy and his mother were adding the names of the other two pupils, now12 and 13, to the lawsuit. However, last week, they were informed of another change — that their names were being removed from the plaintiffs’ legal action.
“The school board hasn’t communicated anything to us,” one mother said. “We’ve never been contacted, we’ve been left on our own to deal with it.”
The families feel “we’ve been thrown under the bus,” she said.
In June, the Ontario School Boards’ Insurance Exchange, which provides coverage for schools and is acting for the Catholic board, filed a crossclaim against the two children, arguing the school, principal and board should not be held responsible and the children should be accountable for all damages. The cross-claim argues the students were “negligent” and did not respect the school’s “hands off” policy.
Their statement of defence argues the alleged injuries and damages outlined in the suit are “exaggerated, remote and not recoverable at law.”
A Catholic board spokesperson, John Yan, said the board “is aware of the situation,” but cannot comment on a case that’s before the courts.
The insurance exchange, a nonprofit co-operative, insures most school boards in the province with one notable exception. The Toronto District School Board left the carrier in January, citing cost savings, and now has policies with various carriers through broker Aon Canada.
Last year, the insurance exchange collected details about more than 85,000 incidents involving injuries and, in turn, potential liability, according to the website. Incident reports are filed when students, volunteers, visitors or other non-employees are injured on school premises or while under school supervision.
Insurance lawyers say while age 10 is unusually young for such a lawsuit, suing a minor is not unusual and cross-claims are a tactic to spread liability and costs among defendants.
One case that named a 7-year-old who hit another student in the head in a Toronto schoolyard in 1998 dragged on for 15 years before the injured child was awarded more than $4 million in damages.
Aviva Canada sees “a handful to two handfuls” of lawsuits involving minors each year, which tend to arise from such situations as a hockey fight or prolonged bullying, says chief underwriter Mark Warnquist.
Catholic trustees last week discussed Del Grande’s motion to raise the issue publicly at their September board meeting, said chair Angela Kennedy. But the notice of motion was raised in private sessions rather than during the public part of their August meeting and is currently scheduled for their private session next month, she said. That was on the advice of board counsel because legal action is underway, she added.
But Del Grande wants the issue aired in a public forum because of the implications for schools and families.
“This whole thing seems to be operating in a climate of fear,” he said. He said despite supervision and the best intentions, kids do reckless things and injuries happen. “Where does it end?”