Immunity leads to creative theories of liability….

What would a good lawyer do to help out a client who broke an arm in a grocery store?  If there was some evidence that someone at the grocery store had caused the injury due to negligence, the lawyer would make demand on the grocery store for compensation. If no settlement was achieved, the lawyer might file suit against the grocery store, alleging an employee’s negligence caused the injury.    

What if the injury occurred in a neighbor’s backyard?  Same thing. Was someone negligent?  Did the negligence cause the injury?  Go after that person. 

What if it was an automobile accident?  Same process. 

But what if it happened in a Texas public school?  Some lawyers would sue the district and perhaps a teacher or administrator, based on allegations of negligence.  But a good lawyer would know not to do that. The school district has governmental immunity unless a motor vehicle was involved. And almost everyone who works for the school district has official and statutory immunities that shield them from liability as well.  So what to do?

This is one reason we see creative theories of liability in reported court cases.  Take, for example, Chupka v. Pflugerville ISD.  The suit alleges that a 9th grade student took a fall during P.E. class and suffered breaks to an arm and a hip. Ouch. The lawsuit does not allege garden variety negligence, but rather, disability discrimination. The suit alleged that the school district called the mother to deal with this injury, rather than EMS, and that this decision amounted to discrimination based on disability in violation of the Americans with Disabilities Act (ADA).  

Nope. The 5th Circuit made quick work of this case, noting that ADA claims require proof of intentional discrimination.  There was no sign of that here.

The case was decided on April 8, 2022 by the 5th Circuit.  I’m pleased to let you know that Kelly Janes and Kelley Kalchthaler of our firm’s Austin office represented the district on this one. 


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Tomorrow: do ESCs ever get sued?