Thankfully, my parents did not accept the negative prognosis and stigma about autism as a life sentence for me. They dared to dream and were the ones who said ‘yes’ when the rest of the world said ‘no.’Haley Moss, Esq., associate at Zumpano Patricios, 2018 graduate of the University of Miami School of Law.
About 1 in 54 children has been identified with autism spectrum disorder (ASD) according to estimates from the CDC. Autism occurs in all racial, ethnic, and socioeconomic groups.
Many people, generally, do not understand the autism spectrum disorder. Because of that, people may blame or shame a parent when they do not understand a child’s behaviors. That creates a stigma that can lead to parents feeling socially isolated. And then they become isolated -- They might begin to avoid public gatherings or spending time with friends and family.
Rapper J Cole got himself some bad publicity for lyrics which refer to negatively about people with autism on the Drake track ‘Jedeci Freestyle’. Here is the line:
Go check the numbers dummy, that’s just me gettin’ started. I’m artistic, you n****s is autistic, retarded.J. Cole
Cole apologized on his blog: The post reads: “I said something highly offensive to people with Autism…I should have known better.”
For children diagnosed with ASD the world can feel very lonely. Dan Aykroyd, Daryl Hannah, and Anthony Hopkins were diagnosed with autism when they were young. But not all forms of autism allow for the rich lives those celebrities have led.
This week’s case involves a less fortunate child.
Hana: a 17-year-old female student with autism. Hana is non-verbal.
Cynthia Summer: Hana’s One-on-One Aide at the Brookville Center for Children's Services, Inc., a private school for children, from pre-school to 21 years of age, who have intellectual and other developmental disabilities.
One day at school, Cynthia was assisting Hana when Hana got excited and struck Cynthia in the face with a flailing arm, fracturing her jaw. Cynthia sued Hana, Hana’s parents, and the school to recover for her injuries.
Here is the testimony heard by the court:
TESTIMONY OF HANA’S MOTHER:
Q. Can you tell the Court a little about what Hana is able to understand, from your perspective?
A. Sure. Hana can understand directions but not concepts or consequences. But anything more than three words she really doesn't understand.
Q. What is Hana’s height and weight?
A. Well, Hana is a big person, approximately 5'6" and weighs over 300 lbs.
Q. Can you describe the physical symptoms Hana exhibits stemming from her autism?
A. Well, when she is excited, angry or attempting to process ideas she flails her arms and stamps her feet, or just, you know, acts out.
Q. What about Hana’s behavior in school?
A. A few years back, Hana was having behavioral issues at school. When frustrated she, as I said, flailed her arms and hit her desk and walls. Sometimes she threw things. So the school determined that Hana needed a one-on-one aide, is what they called it.
TESTIMONY OF CYNTHIA SUMMER:
Q. What is your position at Brookdale at the time of your injury?
A. I was a one-on-one aide assigned to Hanna. I was hired by Brookdale for that assignment.
Q. You were interviewed for that position?
Q. And you were informed at that interview that Hana had become more aggressive and that due to her aggressive tendencies, that Brookdale felt they needed someone to kind of steer her back to focusing on what the task at hand was, right?
A. Yes, I believe I was told that at the interview.
Q. And when you accepted the position, you understood when Hana could be aggressive as far as throwing objects, flailing her arms, kicking.
A. Yes. I do believe that to be accurate.
Q. And you had experienced incidents with Hana before this injury, correct?
A. Yeah, I mean, it was ridiculous: Hana was disruptive on several occasions, throwing items like her computer tablet and desks. Hana had broken two desks before they gave her a table she couldn't break. Hana also acted out and kicked Summer once with a flailing leg, knocking me to the floor. She once struck me in the face with a flailing arm.
Q. Did you get medical treatment for that?
A. I went to a doctor to confirm that my nose wasn't broken. But there were 10 — 15 other occasions that Hana struck me with her arms or legs. I got a lot of punches to the chest, just because I would be either standing next to her and I would get, you know, the wind knocked out of me, possibly kicked. I would say that Hana struck me with a closed fist ten times that year.
Q. Did Hana harm anyone else?
A. I saw Hana strike staff members, you know, when she would be flailing her limbs—just arms jerking off in motion…free throwing not consciously…just arms going up and down, out and whichever way.
Q. And your job was to protect Hana?
A. Sir, I acted to protect other students from Hana. I would stay close to Hana as she walked down a hall acting as a barrier to ensure Hana would not strike others with flailing arms. In the classroom, I placed myself between Hana and other students so that she did not accidentally take any of them out.
Q. How did you suffer the injury you are here for today?
A. One school day in the classroom in September, Hana got excited and struck me in the face with her arm. She fractured my jaw. It was inevitable. And Brookdale knew it would happen.
HANA’S PARENTS’ ARGUMENT:
Your Honor, Cynthia never claimed that Hana struck her intentionally. And because Hana cannot be held liable for her actions due to her limited mental capacity, the claim against the parents should be DISMISSED. What is more, Your Honor, Cynthia assumed the risk of the injury she suffered.
This is exactly like New York's "firefighter rule."
Firefighters and police officers cannot recover damages for injuries caused by negligence in the very situations that create the occasion for their services.
The policy behind the rule is simple: someone who is hired to confront a dangerous situation should not be permitted to recover for an injury resulting from the situation that led to their retention. This is exactly what we have here:
Cynthia was told of Hana’s behavior at the interview. Hana was hired because of that behavior! Therefore, Cynthia’s claim is barred.
Your Honor, it has long been held in New York that a mentally challenged person may be held liable for negligence notwithstanding a lack of capacity to understand or control their actions. Hana's mental challenges alone, therefore, do not insulate her from liability. Also, Your Honor, a school aide is not a firefighter or police officer.
And there are no published decisions in New York that directly address this issue. The case should not be dismissed.
Cynthia's role as a one-on-one aide for Hana is very much like the firefighter or police officer’s role. Cynthia acknowledges that she was retained to shadow and assist Hana precisely because Hana had a history of acting out in an aggressive manner by flailing her arms. Cynthia understood her role in part was to ensure that Hana would not hurt herself or others and acted upon the role by becoming a human barrier when necessary. Cynthia had been struck multiple times in the past by Hana and knew not only the risk but the likelihood, that she would be struck again. And given Hana's condition, it was Cynthia and not Hana who was in the best position to protect against the risk that gave rise to her employment—and her compensation—in the first instance.
THIS CASE IS DISMISSED
Swing and a miss for Cynthia. The case is dismissed. Cynthia’s job is crucial and sometimes dangerous. But when injury occurs on the job and you cannot work, you are often limited, as here with Cynthia, to Workers’ Compensation.
Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2020/2020_20118.htm