Posted On: March 20, 2010 by William D. Kickham

Right To Sue Over Bullying Makes (Very) Small Step Forward – Part 3 of 3

Following my previous posts on this subject, comprising Part One and Part Two, let’s now get to the legal decision rendered by a Massachusetts Superior Court judge in the suit filed by Nicholas Parsons and his parents against the Town of Tewksbury, Parsons, et. al, vs. Town of Tewksbury, et. al.., Middlesex Superior Court Civil Action No. 09-1595.

The plaintiffs here brought three claims before the court: 1) A negligence claim, in tort, against school officials and the Town, alleging that school officials knew or should have known that the harm that young Parsons suffered was likely to occur; 2) A claim, also in tort, known as “Intentional Infliction of Emotional Distress.” This claim alleges intentional conduct by a defendant which causes extreme emotional distress to a victim. In law school classes this particular tort is known as “The Tort of Outrage”, in that it seeks to hold someone civilly liable for emotional harm resulting from intentional acts that a reasonable person would find to be “outrageous”, or conduct that “shocks the conscience” of a reasonable person. 3) A constitutional claim, alleging that the inaction of school officials to protect the Parsons boy from obvious harm amounted to a violation of his due process rights (specifically, to safety and protection) under the Declarations of Rights contained within the Massachusetts Constitution.

As I said in my previous two posts on this case, an attorney’s view of this decision will depend almost entirely on whether that attorney practices as a plaintiffs’ or defense counsel. Everyone who knows me, knows that when it comes to the civil side of my practice, I am a plaintiffs’ lawyer. I represent people who have been injured and harmed as the result of someone else’s negligence. That being the case, I find this judge’s decision to be seriously lacking in legal reasoning on at least two of the three claims presented in this case. While the decision offers a small, and nascent, basis for optimism that school officials will in the future face greater liability for the safety of students in their charge, on the whole it is shocking in its ignorance of the outrageous acts of not one, but several school officials who failed to act to protect this boy from violent assailants – regardless of their ages.

Before I articulate my reasons for that position, the judge here, judge Kenneth Fishman of the Massachusetts Superior Court, did rule correctly as a matter of law on the plaintiffs’ claim that school officials knew or should have known that the harm that young Parsons suffered was likely to occur, and that they were negligent in failing to prevent that harm. The judge dismissed this count of the plaintiffs’ suit, and he did so correctly as a matter of statutory construction. The reason is that there is a fairly well-known statute (among lawyers, that is,) called the Massachusetts Tort Claims Act (“MTCA”,) which was created by the state Legislature to shield municipalities from being liable for many forms of ordinary negligence. This Act gives what is called “sovereign immunity” to cities and towns in Massachusetts, meaning they cannot be held liable for harm someone by suffered, unless it can be shown that the officials involved acted affirmatively (deliberately) to create the situation that caused the harm. (In this case, for example, the plaintiffs would have had to show that school officials actually asked or encouraged the bullies involved, to harm the victim. Not relevant.) The judge here correctly found that the MTCA and the sovereign immunity it provides, barred the plaintiffs any recovery on this first count.

However, as to the plaintiffs’ next two claims, the judge erred gravely, in my legal opinion. On the second of the plaintiffs’ counts, alleging intentional infliction of emotional distress, I cannot see how, under the facts present in this case, the judge could have dismissed this count. As I noted above, to recover on this count, a plaintiff must show that the defendants’ conduct was as matter of law, extreme and outrageous. How evidence showing that multiple school officials knew what was going on with the violence in this school directed at this boy - which resulted in his being beaten so badly that his leg was broken - and none of them did anything to prevent or stop it, does not constitute “extreme or outrageous” conduct, I do not understand. I say this as an attorney and legal analyst & commentator. The farthest this judge would go here, in characterizing this shocking negligence by teachers and school administrators alike was that the defendants “may have mishandled and underestimated the seriousness of the situation” brewing in this school. However, he found that, as a matter of law, school officials’ conduct was not “extreme or outrageous”.

Concerning the plaintiffs’ last count, their constitutional claim that young Parsons’ rights to due process (to protection and safety in school,) under the Declaration of Rights within the Massachusetts Constitution, were violated, he rejected this third and final claim, also.
Seeking legal authority to support his reasoning, the judge reached into federal law to borrow and apply a legal concept which says that, in order to recover on this constitutional count, Parsons would have to show that the school officials' conduct rose to a level extreme enough to “shock the conscience” – and that the actions of school officials here did not rise to a level extreme enough to "shock the conscience." That reasoning itself shocks my conscience.

• Multiple school officials knew this boy’s safety – possibly his life – were at risk – and did nothing.
• Parsons’ mother had personally appealed to school officials to do something to stop the escalating violence of these bullies and protect her son. They did little to nothing
• “Behavior Management Facilitator” Robert Ware knew of the escalating violence against this boy, even himself witnessing the boy being victimized, and did nothing.
• Parsons’ English teacher was told by students that the reason why Parson and Willett were absent her class, was because a fight had been scheduled between the youths in the boys’ bathroom – and did nothing.
• “Guidance Counselor" Adam Colantuoni knew of this planned fight – he was observed monitoring a boys' bathroom on the day of the fight, and yet neither he nor Robert Ware reportedly took any actions to prevent the fight.
• When Robert Ware arrived at the nurse's office, and found Parsons wounded with a broken leg and crying, his response (as recounted in the plaintiff’s complaint) was to swear at the young boy, telling him to "walk it off" and to follow him out of the nurse’s office. Thankfully, the nurse intervened, demanding that Parsons be placed in a wheelchair, summoning an ambulance immediately.

In the face of all the above, this judge found that the sum of this shocking conduct, was not “extreme or outrageous” enough to allow relief under Parsons’ constitutional claim. Note to Judge Fishman: It’s legal reasoning like this that makes people argue that judges be elected (a concept I don’t agree with, but decisions like this feed that idea.)

Notwithstanding the judge’s dismissal of this last (constitutional) count, after he rejected it in the instant case, he did state that, "as a general proposition, a cause of action can, in certain circumstances, be brought directly under the ... Declaration of Rights in the absence of a statutory vehicle for obtaining relief." It is here where some legal observers find hope that future cases like this might be decided differently. Recognizing that state or municipal officials could, “potentially.” violate the state constitution without engaging in affirmative threats or intimidation themselves - Fishman determined that such a constitutional claim was viable "as a general proposition." In my view, the judge largely waxed philosophic, but perhaps there is cause for some hope. Optimists are viewing this Superior Court ruling as a suggestion that public school officials might have a duty under the Massachusetts state constitution to protect students from bullying, thus potentially creating an avenue of liability that to date has been seen as legally impossible in the absence of a specific statutory remedy.

I suppose one could view this decision in that optimistic light – a nascent step in the slow process of allowing for liability in these school cases under the state constitution. Hopefully, it can be seen as some small measure of hope that students who are subjected to violence in school can indeed hold liable – and recover compensation from - the very school officials whose duty it is to safeguard them.

However, that won’t do much for Nicholas Parsons or his family now. My thoughts to them, and my admiration for trying.

P.S.: As of the date of this post, the anti-bullying bill under consideration by the Massachusetts Legislature, was, thankfully, passed with its original provisions of mandatory training for school staff and reporting of bullying incidents. This past Thursday morning, March 18, these key provisions had been removed by the House Ways and Means Committee, headed by Rep.Charlie Murphy, of Burlington. It appears that Murphy had temporarily buckled to a behind-the-scenes lobbying campaign by the Massachusetts Association of School Superintendents, and others, who (God forbid,) shuddered at the idea that they should be held to higher standards of professionalism and accountability in this area. Later that same day, these key provisions had been inserted back into the bill after Ways and Means Committee members and other House members gave Murphy an earful. Another important post-script: A great deal of the progress made in this important area of public policy is owed to a journalist who stood up publicly on several occasions, to raise awareness of this problem: Kevin Cullen, columnist with The Boston Globe. He deserves thanks from anyone and everyone who has felt the impact of this issue, from the parents of suicide victims Phoebe Prince and Carl Walker, to those who are unknown.