The incident occurred on March 11th and two friends attached the cord to Dubois’ nipples while a third plugged it in. Dubois then sued the teacher and school for negligence in the starting shock, which temporarily stopped his heart. He suffered permanent brain damage.
Kelley resigned from his teaching position about a month after the incident.
The family alleges that Kelley encouraged Dubois to shock himself and offered anyone a Mountain Dew if they did so. The lawsuit also alleges that Kelley was only eight feet away and saw them fooling around with the cord. Notably, however, they do not appear to have included the other two students as defendants.
In an interview, Kelley insisted “I was talking up my fantasy baseball team with one student and the next thing I know there was a commotion,. I look and I hear an Ouch.’ I look and there’s Kyle going to the ground.” Of course, it is probably not a good idea to be “talking up fantasy baseball teams” with kids messing around with electrical cords.
On the other side of the case, this was a teenager who was old enough to know that he would be shocked and willingly engaged in this foolish conduct. Under a contributory negligence jurisdiction, he would be entirely barred. However, most states are now either pure or modified comparative negligence jurisdictions. I believe New Hampshire is a modified comparative fault state where you are barred if you are 51% or more at fault. That could still be a problem here. Even if you are 50% or less at fault, your recovery is reduced by your degree of fault.
The article refers to Dubois as 18 years old, which would take him out of the category of a minor presumably, but that may also be an issue.
This could be an interesting case on the comparative negligence and assumption of the risk issues.
Source: Union Leader
Jonathan Turley