Tag Archives: Liability

Dawg Bones

IT WASN’T MY FAULT! IT WAS THE MOTORCYCLE SAFETY INSTRUCTOR! CAN I SUE????

I was thinking about tort liability today as I reached into our firm’s supply closet and suffered a paper cut.  Ouch!  My initial thought was that paper cuts are one of the worst things that can happen to a person. They are so unexpected, and they hurt like hell.

But when proper perspective returned, I realized that there are far worse fates that can befall a person. Take a broken shoulder, for example. That’s probably a lot worse than a paper cut.

Kelly Duran broke her shoulder when she fell off the motorcycle during a motorcycle safety course that was conducted by El Paso Community College.  She sued EPCC to recover for her physical injuries.  EPCC asserted that it was immune from liability.

The general rule here is that community colleges, like K-12 school districts, are immune from tort liability.  There is an exception if a motor vehicle is involved, but only if the injury arises from the negligent use or operation of the motor vehicle by a school officer or employee.  I think that tells you what Ms. Duran’s problem was. She was riding the bike when she fell off.  Thus, to make the EPCC liable, she had to convince the court that the instructors in the course were effectively “using” or “operating” the bike, even though she was the one riding it.

No dice.  Ms. Duran argued that the instructors in the course exercised “complete control” over the operation of the bike.  The court did not see it that way.  The court noted two earlier court cases in which a government employee who was not actually driving a motor vehicle was considered to be exercising control over it to the extent that liability was imposed. See County of Galveston v. Morgan, 882 S.W.2d 485 (Tex. App.—Houston [14th Dist.] 1994, write denied) and City of El Campo v. Rubio, 980 S.W. 2d 943 (Tex. App.—Corpus Christi 1998, pet. dism’s w.o.j.).  But the appellate court in this case said that liability could be imposed only if the non-driver exercised direct and mandatory control.  These safety instructors did not have that level of control.  As the court pointed out, “Not only did Duran voluntarily choose to drive [the motorcycle] but she also continued to do so, even after expressing qualms about its size and inadequate rear brake.”

In short, sovereign immunity, as usual, triumphs. Whether it is a paper cut or a broken shoulder, the chances of pinning liability on your local school district are slim. The case is El Paso Community College District v. Duran, decided by the Court of Appeals in El Paso on July 22, 2015.

DAWG BONE:  TEXAS SCHOOL DISTRICTS ARE WELL PROTECTED FROM TORT LIABILITY.

Dawg Bones

IT’S GETTING HOT AROUND HERE. AND FOOTBALL PRACTICE IS NOT TOO FAR OFF . . .

In 2007, the Texas Legislature beefed up safety requirements in connection with extracurricular activities.  Section 33.201, et. seq. of the Education Code spell out a variety of requirements, including such things as adequate hydration for athletes during practices and games.  I remember in my annual “Back to School” tour for that year predicting that these safety standards would be cited in future cases alleging that the school district, or the coaches, should be held liable for a student injury.

So let me introduce you to the case of Ripple v. Marble Falls ISD.  Blake Ripple alleged that he suffered injuries playing football in high school.  In the suit, he alleged that the district failed to identify him as a student with a disability under Section 504, and failed to “keep him safe from harm and failed to provide him an environment that was not injurious to his physical well-being.”

The school district prevailed in the lawsuit.  The coaches never put Blake back into the game when he was hurt, they had a doctor’s clearance for him each year, and they complied with all of the safety requirements.  The legal wrangling is more complicated than we have time for here, but it’s worth pointing out that one of the allegations was that the student became severely dehydrated after an August practice.  Fortunately for the school district, the coaches were able to produce evidence that they provided water breaks and otherwise complied with the safety requirements.

So today’s Dawg just offers a reminder about these things.  Make sure your coaches review the requirements of Subchapter F of Chapter 33 of the Texas Education Code, which begins with Section 33.201.  Full compliance will be important in the event of future litigation. More important than that, full compliance will go a long way toward maintaining safe conditions for all of the kids.

The case is Ripple v. Marble Falls ISD, decided by the federal court for the Western District of Texas on March 27, 2015.

DAWG BONE: KEEP THAT WATER FLOWING DURING TWO-A-DAYS!

 

 

Dawg Bones

STUDENT DIES IN ATV ACCIDENT. NO ONE AT SCHOOL HELD LIABLE.

De’Jon Pierce was a junior at Hearne High School when he died in March, 2012.  The student crashed an ATV (All-Terrain Vehicle) into a tree.  What did this have to do with the school?  Well, the ATV was owned by the school’s Ag Teacher, and the student was riding the vehicle with his teacher’s permission. In fact, the teacher had taken De’Jon and some other students out of class to work on his own farm.  The suit alleged that this was done regularly, and with the principal’s permission. This work was considered part of the students’ coursework.

On the date of his death, De’Jon drove the ATV to his teacher’s father’s ranch about a mile away to deliver a tool.  Another student rode with him on the ATV. On the way back they crashed into the tree.  The other student survived. De’Jon did not.

I’ll bet if you ran that situation by most educators in Texas, they would guess that somebody would be held legally liable for the student’s death. Maybe the school district. Maybe the teacher.  Maybe the principal.  But in fact, the 5th Circuit held that neither the school, nor the principal, nor the teacher was legally responsible for this tragic accident.

The District
The school district asserted sovereign immunity. School districts in Texas are immune from liability for personal injuries, including death, unless the injury arose from the negligent use or operation of a motor vehicle by a school officer or employee acting within the scope of employment.  Here, the ATV was not operated or controlled by a school employee.   The court thus concluded that “Hearne ISD is immune from tort liability under the Texas Tort Claims Act.”

The Teacher
The parents argued that the teacher removed the boy from school without their permission, instructed him to ride double on an ATV despite not having a drivers’ license, did not properly instruct him on how to operate the ATV, did not provide safety gear, and did not maintain the ATV properly.  The court pointed out that the teacher “may have been negligent.” But that was simply not enough to impose liability under federal law, which was the basis for the suit against the teacher.  As a general rule, educators are liable under federal law for wrongful acts performed intentionally.  The court pointed out that “there is nothing to suggest that [the teacher] intended to harm De’Jon at all or even that he foresaw harm and willfully disregarded it.”  This was a tragic accident, not a deliberate act.

The Principal
The court applied much the same analysis to the claim against the principal. The claim was that the principal was negligent in supervising the teacher, and in allowing him to take kids out of school to work on his farm without parent permission.  Negligent?  Maybe. But nowhere close to deliberate indifference to a known right that could lead to liability under federal law.

The court did not conclude that anyone was negligent here, or exercised poor judgment.   It just held that negligence and/or poor judgment would not have been enough to impose liability.  Suppose, though, that the superintendent concluded that the teacher and/or principal made some serious errors in judgment here. Could the superintendent take corrective action?  Of course.  When a case goes to court, it is all about the standards for legal liability.  Standards of good judgment, however, can, and should, be imposed by school administrators.

The case is Pierce v. Hearne ISD, decided by the 5th Circuit on January 7, 2015.  We found it at 2015 WL 81995.

DAWG BONE: THERE IS A DIFFERENCE BETWEEN ACCOUNTABILITY AND LIABILITY. COURTS ARE ONLY CONCERNED WITH LIABILITY.

 

 

Dawg Bones

STUDENT-TO-STUDENT HARASSMENT LIABILITY

“The kids are calling me ‘retard, chickenhead, twitch, tic-toc and spaz.’  Isn’t this bullying????”

Jamie and Troy Nevills alleged that their son was subjected to name calling and worse while he was attending school in Mart ISD. The boy attended MISD schools from kindergarten until 7th grade, when the parents pulled him out and filed a lawsuit alleging that the school district ignored student-to-student harassment based on disability.

The student was never identified by the district as having a disability under IDEA or Section 504 but that did not prevent the lawsuit. The parents alleged that the school knew very well that their son had a form of Tourette Syndrome which produced verbal and facial tics, and made it difficult for him to speak or concentrate.

In a case involving student-to-student harassment, the parent has to prove five things in order to pin liability on the school district.  In this case, they were: 1) that the student has a disability; 2) that he was harassed based on the disability; 3) that the harassment was severe or pervasive to the point that it altered the condition of his education and created an abusive educational environment; 4) that the school knew about the harassment; and 5) that the school was deliberately indifferent to the harassment.

In many cases like this, the school district will concede one or more of those five facts. For example, if the student has been identified under IDEA or Section 504, there is not much point in contesting Factor Number One—the school itself has identified the student as having a disability.  In this case, however, the district disputed every one of those five critical facts.  The boy had not been identified or served under IDEA or Section 504 and the school denied knowledge of any condition that would qualify as a “disability.” The school denied that the student was harassed based on his disability, and denied that anything “severe” or “pervasive” occurred.

If the school district can conclusively defeat the parent on any one of the five factors, the court will dismiss the case. The parent has to prove all five—so the failure of any one of them is fatal.

Here, MISD filed a Motion for Summary Judgment.  Among other things, the Motion asserted that no reasonable jury could ever conclude that the school’s response to this situation was “deliberately indifferent.”  The 5th Circuit honed in on that one factor, and issued a decision in favor of the district.

That summary makes the whole process sound simple, but it is not. The court ruled in favor of the district because of the record keeping, the documentation, and the affidavits of school personnel that showed how the school responded to the instances cited by the parents. Much of the parents’ case was based on allegations that the school did not punish students who picked on their son.  The record, however, showed that the school responded to the instances it knew about.  Moreover, the principal brought in an outside organization to do some training of the students about bullying.

The 5th Circuit cited its earlier decision in Estate of Lance v. Lewisville ISD, 743 F.3d 982 (5th Cir. 2014) for the notion that public schools are not expected to “purge” themselves of all manner of student-to-student harassment.  Courts are expected to grant “a high level of deference” to school officials.

Judges do not want to be assistant principals.  Nor does the law encourage judicial micromanagement of student discipline cases.  That’s why you see phrases like “high level of deference.”  But keep in mind that the officials in Mart ISD were deferred to because the court could see that they were attentive to what was happening in their schools. They took action. They investigated. They trained.  They documented.

The case is Nevills v. Mart ISD, decided by the 5th Circuit on April 21, 2015.

DAWG BONE:  YOU GET A “HIGH LEVEL OF DEFERENCE” BUT ONLY IF THE JUDGE SEES SOME THOUGHTFUL DECISION MAKING ON YOUR PART.

 

 

Dawg Bones

ANOTHER JOHN DOE LAWSUIT. THIS ONE DID NOT PAN OUT FOR THE DOE FAMILY.

According to the court’s opinion in Doe v. Dixon, teacher’s aide Kristy Ray Dixon plead guilty to a charge of Improper Relationship Between Educator and Student, a second degree felony.  She was given a ten-year deferred adjudication sentence based on her sexual interaction with a 14-year old boy in Blum ISD.

But she was not held liable in the civil suit filed by the boy’s mother.  Nor were any of the other parties held liable.

Remember the O.J. case?  He was acquitted in the criminal case, but lost in the civil court.  This case went just the opposite way.

The mother filed suit against the teacher’s aide, the principal who supervised her, and the district.  In the suit, the mother alleged claims under both federal and state law.  The federal claim against the principal was dismissed because the facts alleged in the Complaint did not reach the level of “deliberate indifference.” A principal is not personally liable simply because a person he supervises acts badly. There has to be evidence that the principal knew what was happening and responded with deliberate indifference. That was lacking here.

The federal claim against the BISD was also tossed out.   The district is not liable simply because one of its employees acts badly. There has to be evidence that the policy, custom or practice of the district was the cause of the injury.  That was lacking here also.

But what about Ms. Dixon? Why is she not liable for her sexual activities with a 14-year old?

The suit sought to impose liability against Dixon in both her “official” and her “individual” capacities. But she can be liable in the “official” capacity only for what she does under “color of” (i.e., authority) of the district.  Messing around with a 14-year old boy was not part of her job description, and was not authorized by the district.  Therefore, she was not “acting under color of law” when she did this.

So you might assume that the indiscreet teacher’s aide would be liable in her individual capacity. But no.  These claims alleged assault and battery, and the intentional infliction of emotional distress.  These are state law claims.  Under state law, a plaintiff must give notice to a school district professional employee prior to filing suit against that employee. That didn’t happen here. Also, the Texas Civil Practices and Remedies Code specifies that if you sue a school district you are automatically barred from any suit or recovery by the plaintiff against any individual employee regarding the same subject matter. Thus, since she had sued Blum ISD, she could not simultaneously pursue litigation against the principal or the teacher’s aide.

So Ms. Dixon was not held liable by the court for any civil wrong—neither a constitutional violation, nor an assault, nor an intentional infliction of emotional distress.  She lost her job and got a lengthy “deferred adjudication” but all things considered, it could have been a lot worse for her.

If Ms. Doe finds that frustrating, just imagine how she will feel when she gets the bill for the principal’s attorneys’ fees.  The principal had another defense available to him in connection with the “intentional infliction of emotional distress” claim.  He was entitled to “qualified immunity” on that claim.  He was a professional employee, acting within the scope of his employment, exercising judgment or discretion and not using force in connection with student discipline. Therefore, he was entitled to immunity from this suit, and John Doe’s mother is responsible for his costs and attorneys’ fees.

So it goes.  The case was decided by Walter Smith, federal judge for the Western District of Texas on February 11, 2015.  It can be found at 2015 WL 589632.

DAWG BONE: CRIMINAL LIABILITY DOES NOT ALWAYS LEAD TO CIVIL LIABILITY.

 

 

Dawg Bones

CAN THE SCHOOL BE LIABLE FOR WHAT IT “SHOULD HAVE” KNOWN?

The recent 5th Circuit decision is “unpublished” but it nevertheless sends a strong message about what it takes for a school district to be held liable in a student-to-student sexual harassment case.  The court tells us that schools are liable under Title IX only if they “had actual knowledge of harassment; constructive notice will not suffice.”  Note: the term “constructive notice” is legalese for “you shoulda known.”

This comes from Kelly v. Allen ISD, decided by the 5th Circuit on February 19, 2015.  In the suit, the parents allege that their son was bullied and sexually harassed by another middle school student. The parent had the burden of proving that 1) the district had actual knowledge of the harassment; 2) the harasser was under the district’s control; 3) the harassment was based on the victim’s sex; 4) the harassment was so severe, pervasive and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit; and 5) the district was deliberately indifferent.

The school district asserted that the case fell short on several of those five elements, but exercising judicial economy, the 5th Circuit just focused on factor number one: did the school have “actual knowledge”?  If the parents failed that test, the whole case fails.

The court held that the school did not have actual knowledge of the sexual harassment. The most outrageous incident was the alleged “t-bagging.” (Don’t you just love middle school?).  We choose not to describe what that means.  You can Google it.  What was relevant here was the fact that the t-bagging occurred when teachers were not present. (Good to hear!)  So they didn’t know about it until a student reported it. And when that happened, the school administrators swung into action with a thorough investigation, taking reports from over 50 students.  Disciplinary action was taken.

If the parents had gotten past the “actual knowledge” hurdle, no doubt the school would have stressed that its swift and forceful response showed that it was not “deliberately indifferent.” But this case didn’t get that far. The court said that “The undisputed facts in the record lead to the conclusion that Allen ISD had no knowledge of facts that would permit the inference that [the student] faced a substantial risk of serious harassment, and that no Allen ISD official in fact drew such an inference.”

The Office for Civil Rights continues to urge a “should have known” standard in cases like this, but the courts have consistently rejected that in favor of the tougher standard of “actual knowledge.” This case is the latest example, and it can be found at 2015 WL 690276.

DAWG BONE:  THE 5TH CIRCUIT TELLS US THAT YOU CAN’T BE LIABLE UNLESS YOU KNEW ABOUT IT.

 

 

 

Dawg Bones

RESPONDING TO A LAWSUIT: YOUR THREE BASIC RESPONSES

When someone is accused of wrongdoing they have the opportunity to admit they were at fault and accept the consequences. So, for example, the police officer pulls you over for going 30 in a 20 MPH school zone. You can say: “Yes, I did that, and I am sorry. I am ready to accept the consequences.”

But if you feel that you are being wrongly accused, there are three basic responses available to you.

You can say NO: “NO. I didn’t do that. I’m not guilty.”

Or you can say YES BUT: “YES, I did what you say, BUT there was a good reason. Let me explain.”

Or you can say SO WHAT?: “Yes, I did exactly what you said that I did. SO WHAT?”

We think these three responses apply across the board, from children in school, to poor drivers, to defendants in lawsuits.

Of course, lawyers have special labels to describe these three defenses. The “NO” defense is what we call a “general denial.” Your lawyer files a response to the lawsuit that flat out denies every allegation the plaintiff has made. This puts the burden of proof where it belongs—on the plaintiff who is bringing the lawsuit. You say I was driving 30 in the 20 MPH zone? I deny it! Prove it!!

The “YES BUT” defense is referred to as an “affirmative defense.” It admits the truth of the basic allegation, but then offers a worthy excuse. For example, “YES, I admit that I was driving 30 MPH in the school zone, BUT the blinking light was not blinking, and besides that my mother was in the emergency room, and I was rushing to be by her side.”

The “SO WHAT” defense is usually accompanied by a Motion for Summary Judgment. It acknowledges the truth of the allegation, and then contends that there was no violation of law. “Yes, I was driving 30 MPH. Yes, the light was blinking. But it was a Sunday afternoon and there was no school. No school—no school zone. The speed limit was actually 35.   No violation of the law.”

Most good lawyers will offer all three defenses. “My client didn’t do it, Your Honor. But even if he did, he had a good reason for what he did. And even if it was not such a good reason, what he did is not a violation of law—so toss this case out!”

It’s kind of like playing defense in football. Your football team has three lines of defense: the line, the linebackers, and the secondary. If your linemen stop the play at the line of scrimmage, there is no damage to your team’s cause. If, however, the linebackers stop the play after a gain of 7 yards, you have paid a price. And if the runner runs free for 25 yards before the safety makes the tackle, you have paid a heavy price.

Cases that are dismissed early on are usually dismissed due to the SO WHAT defense. This is accomplished by a Motion to Dismiss early on, arguing that there is simply no basis for legal liability here. For the football analogy—this is a sack or a stop by the line.

If your defense is a YES BUT defense, your litigation costs will be higher. You have to marshal facts and evidence to show the court that there is an “affirmative defense.”

And if that doesn’t work, you are down to a factual struggle over what actually happened. This is when we have expensive jury trials that are long and costly in every sense, even if you “win.” It’s like you prevented the touchdown, but you gave up a lot of yardage.

I know that football season is over, but I still think it’s a pretty good analogy.

DAWG BONE: DEFENDING A LAWSUIT IS LIKE DEFENDING A FOOTBALL PLAY…..SORT OF.

 

 

Dawg Bones

CAN A SCHOOL DISTRICT AND ITS EMPLOYEES “CONSPIRE”?

One of the legal theories that we see more frequently these days is that the school district and some of its employees engaged in a “civil conspiracy” to deprive someone of federal rights. Such a theory was attempted in C.C. v. Hurst-Euless-Bedford ISD. The court’s decision, relying on precedent from the 5th Circuit, tells us that it is impossible for a school district and its employees to engage in a civil conspiracy: “Because defendants are a school district and its employees, plaintiff cannot plead facts sufficient to demonstrate a conspiracy.”

The parents had alleged that school officials “conspired” to “kick [the student] out of school by treating some of his conduct as felonies.” Without sorting out whether or not this allegation is true, the court dismissed the charge because a school and its employees are a “single entity” and a single entity cannot “conspire” with itself.

So you can “conspire” with your friends to throw a surprise party. You can “conspire” to dump a bucket of Gatorade on the coach at the end of the game. But you cannot “conspire” with your school district or your fellow employees to deprive someone of the federal rights protected by 42 U.S.C. 1985. Good to know.

The case was decided by the federal court for the Northern District of Texas on January 8, 2015.

DAWG BONE: A SCHOOL AND ITS EMPLOYEES CANNOT “CONSPIRE” WITH ITSELF.

 

 

Dawg Bones

PARENT VS PARENT: SCHOOL ON THE SIDELINES

Dustin, with a little help from Melissa, created a fake Facebook account and used it to pick on Alexandria, one of their classmates.  The court doesn’t give us details in the opinion, but you can imagine how cruel 13-year olds can be to other 13-year olds.  When they found out about this,  Alexandria’s parents had a pretty good idea of who was behind it, and reported their suspicions to the school principal. The principal called in Dustin and Melissa, both of whom sang like canaries with written confessions.  The principal imposed disciplinary consequences.

So did Dustin’s parents.  But according to the subsequent lawsuit, that’s all that they did. They did not contact Facebook. They made no effort to get the account deleted.  Many months went by with the defamatory material there for all to see as the Facebook account continued to attract “friends.”

Alexandria’s parents sued Dustin’s parents. The suit was based on Georgia state law, alleging that the parents were negligent for the defamation due to the “negligent supervision” of their son.  The lower court tossed the case out, granting summary judgment to Dustin’s parents. But the Georgia Court of Appeals reversed that decision, holding that this is a valid cause of action that should not be dismissed.  Instead, a jury will have the opportunity to review the evidence and determine if the facts support the theory.  If they do, Dustin’s parents could be held liable.  Boston v. Athearn, Georgia Court of Appeals, October 10, 2014.

Notice that even though the school got pulled into this family dispute, it managed to stay out of the litigation!   

DAWG BONES: SOMETIMES IT IS BEST TO STAY ON THE SIDELINES

 

 

 

 

 

Dawg Bones

WHO IS AN “APPROPRIATE” PERSON IN THE SCHOOL SETTING?

Like many terms used in the law, “an appropriate person” has a special meaning, and it has nothing to do with your table manners.  The term comes from a Texas case that made its way all the way to the U.S. Supreme Court—Gebser v. Lago Vista ISD.  In that case, the Court outlined the circumstances that would make a school district liable for something that one of its employees, or students did.  Gebser involved teacher-to-student harassment.  The issue was: should Lago Vista ISD be held responsible?  Under what circumstances?

The Court held that LVISD would not be liable unless “an appropriate person” had actual knowledge of what was going on, and responded with “deliberate indifference.” What makes a person an “appropriate person”? Generally, it means that you are vested with the authority to take corrective action.

So if the harassment is being done by a teacher, the principal would probably qualify as an “appropriate person.”  As the teacher’s boss, the principal has the power to take corrective action.   If the harassment is done by the principal, the superintendent would be viewed as “an appropriate person.”

The Office for Civil Rights has a very expansive notion of who is “appropriate” although they use the word “responsible.”  The bottom line on this is that if someone employed by the school district has the power to take action to address sexual harassment that is going on in the school setting, that person is likely to be considered “appropriate.”  Make sure you are providing training for everyone about these responsibilities.

Here’s your Dawg Bone for the day:

DAWG BONE: MAKE SURE THAT ALL OF THE “APPROPRIATE PERSONS” ARE DOING THE RIGHT THING.