Twelve years ago, a former National Hockey League player hosted a birthday party for his young son, and invited the entire 5th grade class. For the event, he rented a child golf game that included a plastic golf club.
Everything was going well, until the end of the party, when a 4-year-old boy, unsupervised at the time, swung the golf club and struck an 11-year-old girl in the lip, splitting her lip and knocking her front tooth out.
Now, a dozen years later, she has filed a personal injury lawsuit, accusing the hosts of the party of negligent supervision under premises liability law. She alleges the injury caused her to undergo 53 dental appointments over the years, a number of surgeries, pain and suffering and mental anguish. She can’t bite normally into food, had to give up on participation in music class (because she couldn’t blow into wind instruments without straining her lip) and has suffered teasing and bullying over the appearance of her mouth.
Recently, defendants in Fasanello v. Ledyard asked a trial judge to toss the case, filed by the now-23-year-old plaintiff. Although the judge declined, defendants made a number of strong arguments for dismissal. He said questions of fact remained as to the level of supervision at the party and whether defendants were negligent.
Some interviewed by a journalist recently about the case, questioned how it was possible such a complaint could be presented so long after the fact. The answer lies in a provision of law that tolls the statute of limitations on negligence actions that involve minors.
As our Montgomery personal injury lawyers can explain, here in Alabama, Ala. Civil Code generally allows only 2 years from the date of injury for a claim to be filed. In cases of product liability, the timeline is even shorter – just one year. Claims filed after that will be tossed. But there is a major exception when it comes to minors.
The law states that the limitation period starts to run on the minor’s 19th birthday. That means minors may have as long as until age 21 to file such action – even if the original incident occurred more than a decade earlier.
There is also a tolling provision (not applicable to this case) that allows lawsuits to be delayed until such time that the injury is discovered or should have been discovered. This is called the “discovery rule.”
Here, there are conflicting versions of what happened. All agree the hosts of the party were supervising the game when all the guests were participating earlier in the day. They also all agree no adult was watching at the time of the incident. Defendant’s daughter, then 12, says she watched as the plaintiff walked absentmindedly sucking on a ring pop toward the 4-year-old boy. Plaintiff got too close as the boy swung the club and was struck in the mouth.
Plaintiff, however, alleges she was waiting behind the young boy to play the game. Although she says she was standing far enough back, the boy took a “baseball-like swing” with the club, striking her forcefully in the mouth. She said she was covered in blood, her tooth was on the ground and a nerve was dangling from her mouth as she screamed in pain.
She debated whether to file the action, but says her medical expenses and ongoing problems following the injury warranted action.
Following denial of defendant’s motion for summary judgment, the case will now go to trial.
Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.
Judge allows lawsuit over injury at 2003 child’s birthday party, Jan. 2, 2016, By Charity Vogel, The Buffalo News
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Alabama Supreme Court Affirms $15 Million Dram Shop Lawsuit Verdict, Dec. 20, 2015, Montgomery Injury Lawyer Blog