A little guy named C.B.D. got off to a rough start in kindergarten. On August 25, 2016, the little boy was injured at Wilson Montessori Elementary School in the Houston ISD. When his father arrived at the school he found the boy in the principal’s office where he was being restrained by the school nurse. There was blood on the boy’s clothing and bleeding around his lower teeth. The dad took C.B.D. to the dentist where three teeth were removed. The dentist diagnosed a fractured jaw.
How did this happen? Well…we don’t know. Neither does the dad, and that’s why he filed a “pre-suit” against the district, seeking to conduct an “investigatory deposition” of a representative of the district.
This is a rarely used procedure, authorized by Texas Rules of Civil Procedure 202. The rule allows a party to seek court approval for a pre-suit deposition to 1) perpetuate or obtain testimony for use in an anticipated lawsuit; or 2) investigate a potential claim or suit. In this case, the dad was investigating a possible claim. He did not know if the facts would justify a lawsuit, nor did he know who would be the proper defendants in such a suit. He sought the deposition to learn more about exactly what happened.
The district responded with a “plea to the jurisdiction” arguing that the court should deny the request and toss the “pre-suit” out. HISD based this on the fact that there was no motor vehicle involved in this incident. Whatever happened to the five-year old happened in the school building. The district reasoned that it can only be held legally liable for personal injuries that arise from a motor vehicle accident. Thus the argument was: no motor vehicle = no claim. No claim = no jurisdiction.
That argument might have worked if HISD was the only potential target of a legal claim. But the dad pointed out that his “investigatory deposition” might reveal that school employees were negligent or excessive in handling the boy; or that a non-employee may have been responsible. Thus there were potential defendants that the court would have jurisdiction of. Based on that, the court denied the plea to the jurisdiction. Dad will get his deposition and we’ll see what happens after that.
The other interesting angle in this case involved the surveillance videos that may have captured the student’s injury. The dad alleged that the district denied him access to these videos. In court, the district asserted that the videos had subsequently been “overwritten” but provided no evidence in support of this. Parental access to surveillance videos is a legal issue that can only be resolved by reviewing the specifics of the situation. It’s a good idea to call your school lawyer whenever you have a parental request for such access.
We’ll keep an eye out for this one if there are further developments. The case is Houston ISD v. Durrell, decided by the 14th Court of Appeals on March 29, 2018. We found it at 2018 WL 1528336.
DAWG BONE: “PRE-SUIT DEPOSITIONS” CAN BE ORDERED AS PER RULE 202, TEXAS RULES OF CIVIL PROCEDURE.
Tomorrow: How long is the STAAR Test?