Davis Bay's Kathleen Kyler is taking School District 46 (SD46) to court for injuries her son Nicholas Pluschke allegedly sustained while playing baseball at Kinnikinnick Elementary School on May 20, 2009.
During a makeshift game of baseball, Nicholas allegedly slipped on an ice cream bucket lid that was being used as a base and fell, fracturing his left elbow.
Kyler claims that injury left the boy with pain, post-traumatic stiffness, reduced dexterity and numbness in the left arm.
Kyler filed a notice of civil claim on April 20 of this year in relation to the incident.
"The school district replied with an offer, but we denied it. Nicky was forever changed as a result of the accident," Kyler told Coast Reporter.
The civil claim filed by Kyler said her son continues to suffer from pain, emotional upset and loss of enjoyment of life.
Nicholas is an autistic child, and Kyler takes exception to the school district's statement in their response to the civil claim, which states that any injury he is suffering from is likely due to "unrelated health conditions including autism spectrum disorder, learning and developmental delay, obesity, psychological problems, physical and psychiatric illness/disorders, injuries, congenital defects, social environmental and biological factors and conditions affecting the infant plaintiff."
The response goes on to say the alleged incident did not aggravate or cause any pre-existing or subsequent conditions, illnesses or disorders in Nicholas.
"They are failing to take any responsibility," Kyler said.
In the school district's response to the civil claim, they maintain Nicholas was well supervised and told not to run when the alleged incident happened.
"The PE [physical education] teacher asked the group to physically lay out the game and demonstrate it by a walk through. The students, including the infant plaintiff, were specifically told not to play the game and to walk not run," the response said. "Contrary to the instructions given by the PE teacher and the SEA [special education assistant], the infant plaintiff ran and/or jumped at or near the first base and fell."
SD46 denies any wrong doing in their response to the civil claim.
"The defendant and its employees exercised all reasonable care and skill in supervising, monitoring and instructing the infant plaintiff. The defendant denies that it or any of its employees were negligent, at fault or in breach of any standard or duty of care as alleged."
Kyler disagrees and is planning to take SD46 to court on behalf of her son in the hope that he be awarded non-pecuniary damages, loss of past and future income, past and future costs of care and special damages and be reimbursed the costs of the court action.
"We want Nicky to get the care he needs as long as he needs to get his strength back," Kyler said, adding Nicholas will be seeing another psychologist this month at the request of SD46. "We've been through so many [psychologists]. They [SD46] are trying to show he's not impacted."
Kyler expects that a date for trial will be set after the psychologist visit, but she is unsure when the case will get to court.
SD46 superintendant Patrick Bocking said SD46 could not comment any further on the case because of confidentiality rules.
