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Judge allows lawsuit over injury at 2003 children’s birthday party

Grant Ledyard saw a lot of bloody lips and broken teeth during his playing days in the National Hockey League.

But for the former Buffalo Sabre, a smack in the face between two children in his front yard left a lasting impression.

A child swung a plastic golf club and struck an 11-year-old girl, splitting her lip and knocking out a front tooth, during a children’s birthday party at Ledyard’s Clarence home.

That was 12 years ago.

On that day, Ledyard and his wife, Elizabeth, wanted what any parent wishes for a child celebrating a birthday: a fun children’s party attended by classmates and complete with all the little touches – a cake, games, gift bags.

But today, the Ledyards are still dealing with the aftermath of their party gone awry.

Almost a decade after the party, the girl, who is now 23, sued them over the incident. Brianna L. Fasanello also sued the mother of the then-4-year-old boy believed to have swung the club.

“It’s the most ridiculous thing in the whole world,” the boy’s mother said of the lawsuit, according to a court record.

In September, a judge denied the Ledyards’ request to throw the case out of court, and the matter against them remains undecided. The judge, however, dismissed the complaint against the boy’s mother.

Years after the Ledyards’ party, the lawsuit raises questions about adult supervision, children’s behavior and whether the plastic golf club was a “dangerous instrument.”

However it plays out in court, the incident serves as a cautionary tale for any parent who wants to throw a party for a child and invite the whole class over – and if the entertainment includes a plastic golf club.

The party might end. But what happens among the invited guests might hound the hosts for years.

The swing

Jacob Ledyard was turning 11 years old in May 2003.

The Ledyards invited Jacob’s fifth-grade classmates from Ledgeview Elementary School in Clarence – all of them – to his party.

By the accounts provided in depositions from several who were at the Ledyards’ home on Old Goodrich Road that day, the party went well until the very end.

At that point, parents were arriving to take their kids home, Elizabeth Ledyard said.

From her front deck, she saw a lone boy in the yard, playing the golf game.

Earlier in the afternoon, many of the children at the party played the game, which the Ledyards rented for the occasion. Using a plastic club, players hit a small Velcro-covered ball onto a Velcro wall, scoring points depending on where the ball landed on the wall.

That day, Grant Ledyard had watched the kids play the game, making sure they took turns and played safely.

Accounts in court records vary about how the girl was hurt.

Fasanello said she walked over to the golf game and waited to play. Fasanello said she stood behind the boy, far enough away so she wouldn’t get struck by the club he held.

But when the boy took a backward swing – a big one – he hit her in the face.

She called it a “baseball-like swing,” and the strike to her face – her upper jaw – knocked her down.

“I had my hands pooled with blood,” she said in her deposition. “My tooth fell out of my mouth, and I had a nerve dangling.”

“I was screaming trying to figure out what to do with my hands that were filled with blood,” she said.

Elizabeth Ledyard gave a different account.

She said Fasanello walked toward the front yard, just before the accident, with a candy Ring Pop in her mouth.

“She was walking across the yard not paying attention, and he went into his back swing and hit her in the mouth,” she recounted.

When Fasanello fell to the ground, Elizabeth Ledyard ran from the front porch to help her.

She saw blood and the tooth in Fasanello’s hand. Fasanello was upset, so Ledyard tried to soothe her.

She took the girl’s tooth and put it in some milk. And she gave Fasanello ice for her injury.

“She was extremely calm,” Elizabeth Ledyard said.

But Fasanello’s father was not, Elizabeth Ledyard said. When he arrived, she said hello to him. But he unleashed a tirade of expletives, she said. The two had never met before.

“I started crying,” Elizabeth Ledyard said. “I didn’t get another word out.”

The aftermath

The next day, the Ledyards went over to the Fasanello home with gifts and a get-well card.

“Jacob felt bad that Brianna had had her tooth knocked out at our house, and we went over the next day to just say hello and check on her and make sure she was OK,” Elizabeth Ledyard said.

And that was pretty much it – at least for the Ledyards.

For years, for them, the incident was in the past.

But the pain and embarrassment was just starting for her, Fasanello said in her deposition.

After the party, a dentist reinserted the tooth and bonded it to her other teeth and advised consulting other dentists to see what needed to be done later.

She needed four or five stitches in her upper lip.

Fasanello missed four days of school.

Between 2003 and 2013, she went to 53 dental appointments and eventually had the tooth replaced. She also underwent surgeries in high school and college to re-form her lip.

“Ever since the incident happened … I had a turtle lip. I was constantly embarrassed by the way it looked. I constantly tried to hide it,” she said.

She said she still copes with problems with her teeth. She can’t bite anything hard. She has to wear mouth guards when doing physical activities, and her parents didn’t let her play in softball games.

She couldn’t play wind instruments without straining her lip, so that ruined her plans for music school.

Even kissing can cause “strain,” she said. If she drinks from a pop bottle, her mouth gets sore.

“I regret not being able to bite into a bagel or apple, such as when my sister brought me home caramel apples,” Fasanello said in her deposition. “I have to constantly cut up things and I can’t bite into things like everyone else does.”

“To me it’s like a disability because I cannot perform activities that my sister or some other people can,” she said.

Fasanello attended Daemen College for her freshman year and then spent the next three years at Niagara University, where she played goalie for the college’s field hockey team.

She recounted episodes that embarrassed her. Once, a group of basketball players spotted her without her tooth, and they encouraged others to laugh about it, she said.

“That was an embarrassing event,” Fasanello said.

The lawsuit

In March 2012, when she was 20 years old, Fasanello filed a lawsuit, seeking unspecified damages against the Ledyards and Sharon N. Lysen, the mother of the then-4-year-old boy suspected of swinging the club.

State torts law protects minors, which allowed the suit to be filed nine years after the incident.

In negligence cases, when someone is under 18, the statute-of-limitations clock starts running for them to file a lawsuit when they turn 18 and are considered an adult, said Kevin W. Spitler, president of the Bar Association of Erie County.

The passage of time, however, can cause complications for both sides, Spitler said.

“Witnesses forget. Witnesses move away,” he said. “The item that caused the injury is no longer available to be examined. You may have treating physicians that may not be in practice. So delay is a problem.”

A lawsuit over an incident that happened so long ago is rare, said attorney Gregory T. Miller, vice president of the bar association.

“It is really the exception, not the rule,” Miller said.

Fasanello said suing was not something she wanted to do while attending Clarence schools. So she waited until she was in college.

“I did not have to suffer that embarrassment or uncomfortable feeling of being around classmates who are friends with Jacob Ledyard,” she said during her deposition.

She said in court papers that she discussed the lawsuit with her parents.

“They were not encouraging me to sue,” she said.

In this case, neither Fasanello nor Elizabeth Ledyard identified in their depositions the boy who swung the club.

Lysen, a Clarence mom at the party that day, had brought her two sons, one of whom was a classmate and an invited guest of Jacob Ledyard, and the other his younger brother.

Grant Ledyard, 54, who played in the NHL for 18 years, including from 1988 to 1993 for the Sabres, supervised the golf game earlier during the party when the fifth-graders were taking turns. He said Lysen’s younger son wanted to play the golf game around the end of the party.

“He asked me specifically, and I said no, you need to wait until the end of the party,” Ledyard said.

Grant Ledyard wasn’t supervising the game when the mishap occurred.

Over the years, what happened at the party isn’t something the Ledyards talked over with the boy or his mother.

“It’s been 10 years,” Grant Ledyard said in his deposition. “I haven’t talked to him about it, not one time.”

The ruling

For the Ledyards, the case remains unresolved.

State Supreme Court Justice Timothy J. Drury in September denied the Ledyards’ request to throw out the lawsuit.

In his written decision, Drury said the Ledyards offered “excellent arguments” as to why they were not to blame for the actions of children at the party, including the 4-year-old.

“However,” Drury wrote, “Mr. Ledyard stopped monitoring the golf game at the time the accident occurred.”

Questions of fact remain as to the alleged negligence of the Ledyards and as to the possible causes in light of Fasanello’s injuries, the judge wrote. So Drury declined to decide the case before trial.

Victor Oliveri, a lawyer who represents the Ledyards, declined to comment in detail about the lawsuit. So did attorney Gregory Krull, who represents Fasanello.

What happened in May 2003 apparently prompted one change, according to a court record.

The Ledyards have not invited classmates to another children’s birthday party at their home since then.

email: cvogel@buffnews.com and plakamp@buffnews.com