Leah Nelson attended Beth Rivka Preschool.  She was injured on the playground one day, and her parents brought suit against the school.  They claimed the school was negligent in its supervision of Leah, who they claim was allowed to play on the monkey bars, from which she fell.  The school conceded that monkey bars are not appropriate playground equipment for preschoolers.  They argued, however, that Leah was not injured on the monkey bars, which they consider off-limits for preschoolers.  Instead, they allege she was climbing from a different, age-appropriate apparatus, when she fell and was injured.

At trial, Leah's parents wanted to introduce evidence from an ER record stating that Leah told doctors she fell from the monkey bars.  The school objected. The parents argued that the school was trying to imply to the jury that Leah was coached into saying she was hurt on the monkey bars, and this evidence would show that she made that statement from the very beginning.  The judge did not allow the evidence.

As the parents predicted, the school did challenge Leah's credibility and imply that she was instructed to say she was hurt on the monkey bars.  They also pointed out part of Leah's deposition, where she stated she did not remember how she got hurt.  At the close of the case, the parents again moved to admit the ER record into evidence, but were denied.  The jury found the school not negligent.  The parents appealed.

The appeals court ruled that the trial judge erred by not admitting the ER record into evidence.  This out-of-court statement could have been used to show Leah did not falsify her statements later.  The focus of the defense was that Leah was coached into stating her injury was caused by the monkey bars, but if she had said the same thing immediately after the accident while seeking medical help, before any lawsuit or motive to lie, it could rebut the school's argument.  The judge ordered the trial court to conduct a new trial. 

The school had to re-try a case it had won and try to rebut evidence about the injury.  If the school had kept more careful records and documentation of what happened, this might have been avoided.  For example, if the school could show through a contemporaneous document that Leah fell from the other climbing apparatus, it would help bolster the school's defense.  If a child is ever injured on campus, make sure to have a written summary of the events made as close in time as possible to preserve the memory of witnesses and the student.

Nelson v. Friends of Associated Beth Rivka School for Girls, --N.Y.S.2d--, 2014 WL 2958601