Lawsuit Filed Against Silver Creek School District

SILVER CREEK — A lawsuit has been filed with the Chautauqua County Supreme Court regarding an incident at Silver Creek Elementary School in 2018.

The lawsuit, Kathy M. Restivo vs. Silver Creek Central School district and Board of Education of the Silver Creek Central School district, was filed Thursday and comes after a petition was filed on Jan. 25 by Buffalo attorney Joseph L. Nicastro of Ramos & Ramos.

The lawsuit states, “The defendants (Silver Creek Central School and the Board of Education of the Silver Creek Central School district) and/or defendants by their agents, servants, and/or employees maintained the aforesaid premises in such a dangerous and hazardous condition for persons lawfully thereon, including the infant plaintiff, that it rendered the premises not reasonably safe for the infant plaintiff or other pupils.

“And defendants knew by the exercise of due and reasonable care should have known that the unsafe and hazardous condition then and there existed,” the lawsuit goes on to say. “The defendants and/or defendants by their agents, servants, and/or employees had actual and constructive notice of a condition of danger on the aforementioned premises, and/or created said condition.”

The lawsuit claims that Silver Creek Central School and the board of education of the Silver Creek Central School District allegedly had notice of the unsafe conditions, which caused “the infant plaintiff’s serious injuries and damages,” and that the defendants reportedly didn’t use reasonable care “in the supervision of Silver Creek Elementary School and their pupils”

The district and board of education were served a notice of claim on the matter Feb. 7, but the case is going to the Chautauqua County Supreme Court because “the amount of damages sought by plaintiffs against the defendants in this action exceeds the jurisdictional limits of all lower courts,” the lawsuit claims. “And the plaintiffs will seek damages against the defendants in an amount to be proven and determined at the trial of this action.”

The initial petition reported that the student in question (referred to in the lawsuit as the infant plaintiff) was attempting to walk to the bus stand from the elementary school entrance when he fell, “resulting in a traumatic brain injury and emergency surgery to the brain.” The lawsuit reaffirmed this, and that the injury occurred “on December 13, 2018, at approximately 3:24 p.m.”

The alleged injuries to the unnamed child were described in the lawsuit as “permanent, progressive and ongoing in nature, all relating directly to the negligence and the incident complained of herein.” as well as “a traumatic brain injury; severe conscious pain and suffering, including loss of enjoyment of life; permanent restriction and limitation of motion, function, and/or use; loss of strength and dexterity; and the impairment of his ability to perform his usual and customary activities of daily living.”

Regarding monetary concerns, the lawsuit also states, “As a result of negligence, fault and lack of care of the defendants and/or defendants by their agents, servants, and/or employees, and as a result of the aforementioned injuries, the infant plaintiff was caused to incur medical expense and upon information and belief, will continue to incur medical expenses in the future.”

The lawsuit also mentions the alleged effect of the case on the mother of the child in question. “Kathy M. Restivo has been deprived of the aid, companionship, society, comfort, and services of her son,” the lawsuit states. “And has suffered mental anguish, sleeplessness, and/or anxiety as a result of her son’s suffering.”

Additionally, the lawsuit states, “Restivo has incurred expenses that would otherwise be unnecessary but for the negligence of (the) defendants and/or defendants by their agents, servants, and/or employees.”