The Sixth Circuit Court of Appeals recently permitted a wrongful death suit, brought by the parents of an 8 year-old to proceed by rejecting the public school educators’ governmental immunity defense,. In Meyers et. al. v. Cincinnati Board of Education, et. al., No. 18-3974 (6th Cir. 2020), the Court found the alleged actions of the school employees so egregious, that the governmental immunity would not protect them. As asserted in the suit, third-grader Gabriel Taye was purported viciously attacked in the boys’ bathroom at Carson Elementary school. Surveillance footage from that day shows a student grabbing Gabriel’s hand and yanking him towards the wall. As Gabriel lay unconscious on the floor, more than a dozen students came into the bathroom, taunting and kicking him. When Assistant Principal Jeffrey McKenzie arrived in the bathroom, he allegedly did not attempt to check Gabriel’s vital signs or call for help. Rather, McKenzie repositioned a garbage can and stood over the child, doing nothing. By the time the school nurse arrived, Gabriel had been unconscious for seven minutes. The nurse purportedly examined Gabriel, who had regained consciousness, but did not call 911 (school policy dictated that 911 be called if a student loses consciousness for at least one minute). The nurse did call Gabriel’s mother, informing her that Gabriel had “fainted,” was “alert,” his vitals were “fine,” and that he did not require further medical attention. No one from the school informed Gabriel’s parents that students had attacked their son, nor that he had been unconscious for seven minutes.
Later in the afternoon, when Gabriel arrived home from school, he could not recall what happened in the bathroom that day, only that he “fell” and his stomach hurt. In the evening, Gabriel vomited twice, and his mother took him to the emergency room. She only told the doctor what she had been told, that her son had “passed out” at school. With this information, the doctor diagnosed Gabriel with a stomach flu and discharged him. The next day, Gabriel stayed home from school, but when he subsequently returned, two boys allegedly attacked him in the bathroom. Gabriel reported the incident to a teacher, but nothing came of it. When Gabriel arrived home from school that day, he went to his bedroom, where he hanged himself with a necktie.
Gabriel’s parents filed a civil rights suit in federal court against the school district, superintendent, principal, assistant principal and school nurse. The state law claims included wrongful death, intentional and negligent infliction of emotional distress, loss of consortium, failure to report child abuse, and spoliation of evidence. Defendants filed a Motion to Dismiss the state law claims, in part on the grounds that they are entitled to governmental immunity. The Trial Court denied the motion. On appeal, Principal Jackson and Assistant Principal McKenzie argued that they were entitled to governmental immunity because the complaint failed to allege sufficient facts to establish that their conduct was “reckless” as a matter of law.
The Appellate Court reported that Gabriel’s parents alleged they discovered that their son had been bullied at school twelve times throughout his first through third grade years. Furthermore, Plaintiffs alleged that the “destructive and dangerous climate at Carson [Elementary School] created an unsafe environment for students and intentionally kept parents in the dark.” On appeal, Jackson and McKenzie maintained that Plaintiffs insufficiently pleaded facts that showed that that Gabriel’s suicide was foreseeable. The Court rejected Defendants argument. “If a school is aware of a student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that the victim of the bullying might resort to self-harm, even suicide.” The Appellate Court found that Plaintiffs sufficiently alleged facts to show recklessness on the part of the defendants, including: lying to Gabriel’s parents and not informing them of six instances of bullying; failing to discipline the attackers; failing to call 911; failing to put teachers on notice of the violent bathroom attack; reporting false information about bullying incidents; and ultimately preventing Gabriel’s parents from fully understanding their son’s “horrifying experience at Carson Elementary until it was too late.” Consequently, the Court found that the principal’s and assistant principal’s “behavior, as alleged, to be egregious and clearly reckless, thus barring them from the shield of governmental immunity.”
To read the Court’s opinion, download: