Immunity comes in two flavors.

School policy required that medications be locked in a cabinet in the nurse’s office. According to the plaintiff, that’s not even close to what happened. The suit alleges that the meds were not in the nurse’s office, and the cabinet was not locked. Moreover, the student was able to access this cabinet and get these meds without a teacher stopping him.  Sounds pretty bad, right?  Keep in mind, though, that these are the facts as alleged in the lawsuit.  Some of them would likely be disputed by the school district if the case went to trial.

But it’s not going to trial.  The school district had a more fundamental defense—that the court lacked jurisdiction to hear the case.  The Court of Appeals in Fort Worth agreed with that.  The court held that the school district, as a governmental entity, was immune from the lawsuit in the first place.  Thus the courts lacked jurisdiction to even consider if this amounted to the type of “gross negligence” in medication management that could lead to legal liability. 

Immunity for school districts comes in two types: there is immunity from liability, which means that the plaintiff cannot recover damages; and there is immunity from suit, which means the plaintiff cannot even sue over the matter.  Obviously, if the school is immune from being sued, it is automatically protected from liability for damages.

The plaintiff based the suit on Section 22.052 of the Education Code, which is all about administration of meds.  The statute calls for immunity for the district, and its employees if there is a policy in place, meds are in a proper container and the parent has given permission to administer the medication at school.  I bet your district has adopted that policy.

The statute concludes with this:

This section may not be construed as granting immunity from civil liability for injuries resulting from gross negligence.

So it sounds like if “gross negligence” occurs, there is no immunity.  That’s what the plaintiff argued. 

But the plaintiff failed to take into account the statute that precedes 22.052, which says:

The statutory immunity provided by this subchapter is in addition to and does not preempt the common law doctrine of official and governmental immunity.  T.E.C. 22.051(b), emphasis added.

That’s where the immunity from suit comes from, and that’s what the court relied on.  Key Quote:

But in that section, [referring to 22.052] the Legislature at most waived the District’s immunity from “civil liability for injuries resulting from gross negligence,” not its immunity from suit. 

As this case illustrates, school districts are well protected from liability for the kind of torts that non-governmental entities would be liable for.  But it shouldn’t take fear of liability to maintain safe practices in the school district. That policy about medications is there for a reason.  Follow it!

The case is Doe v. Hurst-Euless-Bedford ISD, decided by the Court of Appeal for the Second Appellate Division in Fort Worth on January 21, 2021.  I’m pleased to let you know this case was ably handled by Meredith Walker and Ali Mosser of our firm’s Irving office. 


Tomorrow: a new teachers’ organization…one you may not have heard of.