September 11, 2017

Pardalis & Nohavicka School Law Update

Pardalis & Nohavicka School Law Update:  School Lunch Monitor Criminally Liable for  Violently Yanking 3RD Grader Off Line For Talking

During the 2015-2016 school year, a third grade student at PSMS 165 was at lunch talking to his friends when the lunch monitor told everyone to stop talking. At first, the 8-year-old stopped talking, but then he told his friends one last thing. The monitor saw him talking.  The lunch monitor approached the child, grabbed his arm very tightly, and yelled “YOU'RE GOING TO THE BACK OF THE LINE!” The lunch monitor, still tightly squeezing the child’s arm, forced him to go to the back of the line. The child cried.  He was left with three round bruises on his arm for four or five days.

The lunch monitor’s lawyer made a motion to dismiss arguing that the lunch monitor did not knowingly act in a manner likely to be injurious to injure the child. But, the court disagreed and additionally ruled that the lunch monitor disregarded his duty not to use physical force on a child, and used physical force for a sufficient time period to force the child to the back of a lunch line; caused the child to cry; and caused bruising.

One interesting (but weak) argument raised by the lunch monitor’s attorney was that the People did not meet their burden to prove the child's age, because it was the child who testified that he was eight-years-old at the time of the incident, and it was not proven by testimony from his parents or a teacher, his school records, nor from his appearance. In sum, the defendant is claiming that the complainant only knows how old he is from other people telling him, and thus it is hearsay. A child's age may certainly be proven in many ways, including by a birth certificate or the child's parent's testimony. But, the court noted that a person may testify to their own age, even though based essentially on hearsay, upon the theory that it is common knowledge in the family.

PS: The  NYC Department of Education's Regulation of the Chancellor No. A-420 prohibits the use of corporal punishment against students.

Here is the case:


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