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Please note: The articles below refer to issues presenting in specific cases and the issues examined are specific to the cases in question. These articles are NOT to be used as a comprehensive checklist. Identifying facts that do not change the dynamics of the cited cases have been altered to preserve confidentiality and anonymity.

“School Choices in Child Custody Cases”
Published in the WESTCHESTER COUNTY BAR ASSOCIATION NEWSLETTER

by Bruce Ira Levenberg BS MS MS PD SAS SDA 

 I recently testified as to the best educational interests of a child. This matter was central to the determination of custody. The pivotal issue was the appropriateness of the parents’ choices of schools and their respective school programs. Often forensic child psychiatrists or psychologists are called to testify as to the child’s psychological state of affairs. School factors are weighed as part of their reports. In this case, the judge specifically wanted an expert educator as part of the process. She felt that even though the clinician was expert to the psycho-educational needs of the child, an educator was needed to judge the appropriateness and qualities of specified school settings and programs. School placement overlaps mental health issues of any child, but the clinician’s perspective and expertise could not be taken as the final word as establish the best school in this case. An educator was needed to determine the qualities of school setting and program placement choices and how that relates to the specific child in question. I was called in this case to provide that expert educator’s determination. It should be understood that cogent educational and clinical perspectives are interrelated, but they should not supplant but rather should supplement each other. Interestingly enough in this particular case, the ostensibly reputably far “superior” school and school district was rejected. The qualities of the respective school districts’ and schools’ demographics and/or general reputations were not the significant factors. The determination of the best school of choice was based upon which venue could best meet and could continue to meet the very specific needs of this particular child. This then..[suggests the next ].. questions of what are the factors in determining the best school setting(s) for a child in the present and also what will meet his needs in the future. In order make such a determination; one must first examine the very individualized needs of the child. How well will the child’s transition take place to a new school? Shifting a child from place to place is often traumatic and must be taken into account. How will he finally fit into his new site? Some children may need a small school setting in order to avoid being lost. Others may need a large school as it offers a variety of choices. What is the child’s learning style? Some children need individualized or small group instruction. Some children need a constructivist or an experiential approach to learning. Does the child need and/or is mandated to receive specific educational services? These services can include any number and combination of academic and non-academic programs such as: gifted and talented programs; remedial reading programs; Special Education services and classes; math labs; SAT prep classes; advanced placement course work; various athletic and non-athletic teams and clubs. Additionally, one must also examine what forms, locations, times and atmospheres do these programs and services take place. Finally, how adequately can and will the school and school district adapt to meet the child’s anticipated needs? Larger school districts or more affluent school districts may be more generous in their commitments to a broader array of offerings to their students. When gathering and weighing the evidence both quantitative and qualitative data must be used. Relying solely on one or the other does not make for a complete picture. Statistics should be reviewed; site visits should be made; a review of the pedagogues and other school personnel’s credentials should take place; and interviews of the concerned parties, perhaps even the child himself, should be considered. Finally, the investigation should appraise how current are the respective methodologies of the schools in question. The bottom line is the determination as to where the child will flourish.

"Safety and Supervision on the School Playground"

Published in the DJS Associates Journal
by Bruce Ira Levenberg B.S., M.S., M.S., P.D., SAS, SDA

Case Synopsis: The plaintiff was an older elementary school student. Following an academic classroom session, her class went outside for recess. At recess the students played on a large general purpose blacktop area adjacent to and surrounding the school on three sides. On the back side of the building there was an outdoor picnic table with attached benches, a large covered metal garbage can and a weighty bike rack all located on the grass in a line outside the perimeter of the play area. All of the outdoor apparatus was situated there in that location before the incident and no one had previously been injured on them. Weather conditions were not relevant. The plaintiff was playing catch during recess with five or six other girls. She alleges that as she turned and ran to catch a ball, she tripped over the bike rack, which caught her foot, and sustained serious facial injuries.
Standard procedure at that school was when the students had free time at recess the teacher in charge of the activity positioned herself where she could have a panoramic view of the entire class. The teacher stood near the picnic table, central to the students’ activities approximately 15 feet from the bike rack when the plaintiff was hurt. The plaintiff admits that the location of the bike rack was well known to her, and that there were no prior injuries resulting from the bike racks or any of the outdoor equipment’s location. The plaintiff alleges that as a result of the negligent supervision of the teacher in charge of the activity and/or the condition of said property (i.e. the presence of a bicycle rack allegedly improperly positioned on the playground while playing ball), she ran into the bicycle rack sustaining serious injuries.

Expert Analysis: Physical activities involve a small amount of inherent danger concerning the students’ physical safety. It is the responsibility of the school personnel (in the formulation and maintenance of safe school policies and procedures) that they contribute to a prudently constructed and maintained safe environment. Parents rely on this when they make the schools “in loco parentis”. Yet it is impossible for the school to guarantee (just as parents cannot guarantee) the absolute safety of their students. Upon physical inspection and review of the facts of the case, the location of the bike rack was not unusual nor was it in a particularly dangerous spot. It was not on the blacktop playing area but rather on the grassy field outside of the sanctioned play area. Up until this incident, there were no problems and no complaints about the bike rack's location. When viewed prospectively, there was no reason for the school district or the supervising teacher to foresee this bike rack as dangerous. The plaintiff’s assertion that she tripped on the bike rack due to its location was unsubstantiated. In fact, the location of the bike rack was well known to the students and was outside the sanctioned play area. It was the plaintiff’s out-of-bounds pursuit of the ball that led her to the bike rack. This was a regrettable but unforeseeable spontaneous off-chance accident not caused by any negligent placement of the bike rack. There is no evidence that this was a highly dangerous, poorly constructed, poorly planned or unmonitored activity. An important safety factor in a playground setting is adult supervision. The teacher in charge was posted properly and all of her students were in plain sight. The adult supervision at recess significantly exceeded the “industry” standard staffing ratio and the teacher in charge of this activity was located properly and watched diligently. The accident was an instantaneous off-chance occurrence. There were no observable irregular or abnormal student behaviors that indicated a necessity for immediate spontaneous supervisory intervention. There were no hazardous conditions present. This event was an unpredictable isolated fluke.

Result: Case settled before trial.

" 'Monkey Business' on the Playground"

Published in the  DJS Associates Journal

by Bruce Ira Levenberg BS MS MS PD SAS SDA 

Case Synopsis: An elementary school age child was injured from a fall during outdoor lunchtime recess. The day in question was a sunny, cool autumn day. The playground was dry with no leaves or other debris on the ground. The playground area was an open public area but reserved for the exclusive use of the school when in session. It was composed of a large, grassy area with three ball fields and three separate pieces of climbing equipment (including the monkey bars from which the child fell). The equipment was permanently anchored in a fibar ® pit. The equipment was clustered and located approximately 10 yards from the school building.

Safe school playground milieu is maintained by anticipating, recognizing and addressing multiple potential or impending dangers. According to the CDC, each year in the United States, hospital emergency departments treat more than 200,000 children ages 14 and younger for playground-related injuries. School recess playground activities inherently involve some dangers of the students’ physical safety. So how can we conclude if this fall or in fact any fall, was or was not a result of negligence?

Expert Analysis: It is the responsibility of the school district in the proper designing, constructing and maintaining of safe equipment and grounds; proper planning and putting into place safe school policies and procedures; and providing proper student supervision to appropriately address all these potential dangers. A physical inspection of the playground reviewed included an assessment of: the playground layout; the equipment recommendations for this age group; the surfacing: the equipment and surface materials, any potential hazards including sharp points; potential tripping or suspended hazards; and any possible crush and/or shearing points. The expert concluded that the playground was properly designed. The equipment was well used and well-worn but well preserved. The expert concluded that the playground, including the equipment, was in satisfactory condition and well maintained.

As for school policies, there were regular comprehensive physical inspections of the grounds and equipment with corrective actions taken where and when indicated; the children were all peers (composed of only two consecutive grades) thus age separation was not a factor; there were no conflicting or overlapping activities; transitions from place to place were well planned and well executed; signage was evident; there were no "outsiders" present; and the equipment was appropriate for that age group. The expert concluded that the plans and protocols in place were well formed and well followed.

As for supervision, there were a sufficient number of school aides on duty. They were positioned properly ensuring proper sight lines (and in fact and there was an extra adult present to cover the other school aides in case another adult had to leave for an "emergency"). The expert concluded that the level of and practice of supervision was appropriate.

It was obvious that school playground recess activities (as is in all outdoor physical activities) have some inherent dangers, but that in this case those dangers were properly addressed. The school district, the principal and staff planned and instituted responsible and reasonable planning and protocols. They met "industry standards". Thus, the defendants were not negligent.

Result: Case settled before trial.