Rosanna Tomack, a former New York teacher’s aide, is suing a student from her Queens grammar school for running into her with an ice cream cone in the halls. The boy, Joseph Cicack, was eight years old at the time. He is now an eleven-year-old torts defendant.
Tomack, 62, insists that the kids were specifically told not to run for ice cream and that eight-year-old Joseph didn’t follow the rules. Imagine that. An eight-year-old boy ran for ice cream.
Tomack was injured by the fall and required surgery on her back. However, if the standard is a reasonable eight-year-old in the presence of ice cream, I (with for kids ten and younger) would volunteer as an expert. My conclusion (free of cost)? There is no such thing as a reasonable eight-year-old boy — particularly in the presence of ice cream.
Chakmakian said the suit was aimed at recovering damages from an insurance policy that covers his parents’ home.
Tomack’s lawyer, Edmond Chakmakian, insists that “It’s a legitimate case,” Chakmakian said. “It’s not silly.” In New York, an eight-year-old can be sued for torts.
Of course, that leaves the question of whether he should be sued by a teacher. Students have sued other students. However, absent a malicious or criminal attack, an eight-year-old should not be a lawsuit for acting his age.
What is particularly interesting is that some states have adopted immunity laws to bar parents from suing teachers, but the laws do not say anything about teachers suing students.
The case reminds me of an equally outrageous lawsuit by a police officer who slipped on a wet floor after parents pulled their near-death child from a swimming pool.
The use of the “walk don’t run” rule is reminiscent of the ruling in Vosburg v. Putney where a court found that an eleven-year-old boy could be held for battery even though he did not intend to cause an injury by kicking a classmate under the table. The court found that the violation of the rule (no play after recess ended) was sufficient since he intended to break the rule.
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Joseph’s mom, Terry, declined to comment.
Hopefully the court will recognize the wisdom of seating a jury comprised of the now-11-year-old’s peers. Perhaps throw in a few 8-year-old expert witnesses, and have all questioning of witnesses conducted through a dozen 6-year-old’s using the Telephone Game. (Thus, “And then she fell?” becomes “And then the monster came out of the closet and kidnapped the fairy princess?”)
When a lawyer, speaking of his own case, says “It’s a legitimate case,” and “It’s not silly,” the odds are it’s pretty silly.
“My conclusion (free of cost)? There is no such thing as a reasonable eight-year-old boy — particularly in the presence of ice cream.”
No truer words spoken, and for reasonable adults, no other explanation required.
Ms. Tomack needs to act her age and forget this ridiculous suit.
Lighten up. Have your own ice cream cone. Relax. You’ll live longer.
A reasonable judge will tell her just that.
But he ought to fine Mr. Chakmakian for wasting the court’s time. He saw “insurance” and his little brain started churning out “$$$” at the thought of deep pockets. Ambulance chasing is low, but ice cream chasing? That’s just pathetic.
Actually, the teacher’s own insurance company should have taken care of the matter. It could then have filed a subrogation action against the child’s parents had it chosen to do so. The explanation by plaintiff’s counsel in this instance is fairly lame. For that matter, wouldn’t this be a workers comp issue?
I’m thinking workman’s would be the easier ball to hit. Then again, not a big payout for Mr. Chakmakian either. Greed is stupid and I’ll gladly chalk up this filing to stupid vs. evil.
This is the kind of thing that gives attorneys, as a whole, a negative public image.
Matthew N et al,
I agree that frivolous lawsuits are sometimes out of control. However, lawyers are there to fill a need and each person in a free society has the right to sue for whatever compensation and/or legal redress they personally require to resolve an issue that personally affects them. I would much rather have such a legal system than one where a corrupt government could determine who had certain rights to sue whom for whatever fixed sum.
Full Disclosure: I have never pesonally needed the services of a lawyer except for several minor legal document questions.
This is the thing that gives humanity a bad name. I may be wrong but is not the purpose of Tort Law to redress a civil wrong that would ordinarily be brought in the criminal arena?
Is an 8 year old capable of being Prosecuted for this action?
What kind of message are we sending to that child?
Did not the woman assume the risk when she took this employment?
Will the Defendants Attorney file some dispositive motion seeking costs and attorney fee?
I agree with some of the others that this should be a workers compensation case. Although I do believe that a teacher should be able to sue a student in the right circumstances, this case is not the one. Besides, if it was chocolate ice cream, I would have knocked her down to get in line first.
raff,
“Besides, if it was chocolate ice cream, I would have knocked her down to get in line first.”
I am shocked and appalled, sir! Fortunately I don’t believe a word of it.
Then again, it is chocolate . . .
Buddha,
it is chocolate and its ice cream! Nuf said.
I hate to be contrary, especially when it involves children. And, you’ll have to excuse me, for I do not have a law degree (not even close), but if the damages exist, were caused by the defendant, and compensation for said damages is readily available through an insurer, does she have another recourse? Are we angry with the teacher, the law, or the attorney(s) here? I know the law in Texas doesn’t allow you to name an insurer as the defendant in a torts claim (at least that is my experience). If the case had been ‘teacher v. Big Insurance Co. who happens to represent little boy’ would we be so quick to judge? Please understand that I am not saying that I believe the child should be sued, I’m only asking if the law were different, would we be so quick to label this frivelous?
Well hold on a second. Firstly, this is clearly civil battery. The first question is whether this was an intentional tort. Did he intend to run into her, or was he simply not looking where he was going and negligently ran into her?
Assuming the second case, I thought there IS a reasonable person standard: namely is this boys conduct what one would expect from a an 8 year old child? The elements of negligence are duty, breach, cause, and damages. Seems we have the last two, and so isn’t the question whether this boy acted in a manner that is unreasonable for an 8 year old? I suspect the answer to that is no, therefore I would move for state law equivalent of 12(b)(6) (just in case) and also for summary judgment.
This whole thing can likely be settled on pre-trial motions.
Some have made the point that the teacher should have a right to sue the child in this case. I can (reluctantly) concede that point. The real question is: what kind of sad and pathetic person could do such a thing.
Any reasonable jury will tell this pathetic excuse for a human being to get lost.
once upon a time, a hobby group we belonged to went crazy about insurance… turned out somebody was sueing the group because HER insurance demanded that every other possible actor be sued before they paid out, AND she wasn’t allowed (by terms of the insurance) to explain this (to the people she was being forced to sue) until after all the other cases had failed. maybe something like this is operating here?