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Mystery eye poker … pencil toting toddler? (NY)

September 7, 2012

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How much evidence is enough to prove that a day care center was negligent when there is an allegation that one toddler injured another? The Second Department addressed this recently in a case of a mystery injury.
In <a href=""><em>Ivan v. Lolita Child Day Care</em></a>, the day care provider admitted that a fellow toddler poked the infant-plaintiff in the eye while at day care. However, doctors found that the infant-plaintiff's cornea had actually been scratched by a pencil. The lower court granted the day care's summary judgment motion, finding that there was no proof that the infant was poked in the eye by a pencil while at day care.
The Second Department reversed the lower court's decision, finding that a plaintiff is not required to exclude possible cause. A plaintiff need only offer evidence from which proximate cause may be inferred. In the instant matter, the day care admitted that the plaintiff sustained an eye injury while in its care and further admitted that no one at the day care witnessed the eye-poking incident. Accordingly, the Appellate Division found issues of fact as to whether the infant-plaintiff's injury was proximately caused by the day care's inadequate supervision.
Thanks to Georgia Stagias for this contribution.
For more information, please contact Denise Fontana Ricci at <a href=""></a>.


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