Boston Accident Lawyer Blog

In a hopeful sign that more aggressive action is being taken against schools, public and private, that do not begin to act aggressively to monitor and punish bullying, the U.S. Department of Education (DOE) earlier this week took some firm action.

DOE sent letters to hundreds of schools across the country, warning them of potential liability for federal civil rights violations if they do not institute strong prevention and punishment policies for this kind of behavior. DOE is warning schools that either tolerating or otherwise failing to adequately address ethnic, gender-based, or sexual harassment could violate federal anti-discrimination laws. If a school is found to have failed to institute policies and practices that act to prevent bullying in any of these areas, the school could be prosecuted under U.S. Civil rights laws (of which there are several). This kind of civil liability could result if, for example, it were shown that a student was bullied because of their gender or ethnicity, or even their perceived sexual orientation.

This type of federal civil rights violation might apply, for example, in the Massachusetts bullying cases of Carl Joseph Walker Hoover and Phoebe Prince, two tragic examples of suicides caused by bullying. Walker was allegedly bullied by students because he was perceived to be effeminate and gay (ironically, his mother has reported that he was not gay, simply fragile and vulnerable.) Phoebe Prince was targeted supposedly because she was a girl and was the recipient of ethnic slurs such as “Irish slut.” In the Prince case, six students have been charged criminally with various counts of assault and even statutory rape. But if it could be shown in cases like these that any of the individual defendants’ actions were based on a protected status under federal civil rights laws and it could be shown that the school failed to take adequate measures to prevent these violations, then federal civil rights charges may also apply in addition to any state law violations.

The same could also apply to potential defendants in any suit brought by the family of the most recent victim of school bullying: Tyler Clementi, the 18 year-old Rutgers University student who committed suicide after a roommate posted a video on You Tube, showing Clementi having sex with another gay man in his dorm room. In that case, the roommate who surreptitiously filmed the encounter and another student who acted with the roommate have been charged with invasion of privacy. New Jersey authorities are also considering bringing a hate-crime charge in the case.

According to Russlynn Ali, assistant secretary for civil rights at DOE, the department is responding to a growing problem – and it ought to. DOE’s Office for Civil Rights received 800 complaints alleging harassment in the last year alone, and data from field offices indicate an increase in school-based harassment of certain groups, including gays, lesbians, and others. Today, The Boston Globe published Part 3 of a 3-Part special series on the growing impact of bullying in schools, "An Epidemic of Anxiety" ,and how parents are trying to deal with it

Acting almost certainly in response to the Tyler Clementi suicide at Rutgers, earlier this week New Jersey legislators introduced an “ant bullying bill of rights,’’ which at least one supporter claimed would be the toughest state law of its kind yet proposed. The bill, with the bipartisan support of legislators and anti-bullying advocates, seeks to supplement earlier laws on this subject that the New Jersey legislature enacted in 2002. The new bill would require antibullying programs to be put into effect in all public schools from grades K-12, and would mandate specific language in college codes of conduct to prevent bullying. More states should take their cue from New Jersey, and act fast to pass aggressive, enforceable antibullying statutes.

While bullying cases involve a hybrid of criminal, federal civil rights and civil (i.e., financial) liability issues, they are fundamentally cases that involve substantial personal injury – physical and emotional. As a Massachusetts personal injury attorney, I have a special passion for these types of cases. When I see someone suffer due to the inactions of “authority figures” such as teachers, principals and school administrators who stood by and ignored a patent threat to a student, I consider it a special opportunity to hold their feet to the fire in a court of law. When I think of what has been done to so many innocent victims of bullying, while school personnel turned a blind eye to it, I’m reminded of why I became a lawyer. If the family of such a victim as outlined in these cases above asked me to represent them in civil liability claims against school or town officials, my policy would be straightforward: Legally speaking, I’d hang them on meat hooks.

Let’s make this clear: Only when negligent and irresponsible school administrators, municipalities and private schools are held criminally culpable and financially liable, will effective policies and practices ever be instituted.

The most recent example of how social media has come to bring the culture in this country down even further, is yet another tragic tale: Tyler Clementi, an 18 year-old gay student at Rutgers University, took his life earlier this week by jumping off the George Washington Bridge in New York City. The reason for his suicide: His roommate, Dharun Ravi, and Ravi’s classmate, Molly Wei, secretly videotaped sexual encounters between Clementi and another gay man, and then. according to published media reports, posted the video on YouTube. Humiliated and desperate, Clementi took his life.

The tragic sequence of events began with a Twitter post sent on Sept. 19 by Ravi: “Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.” Later that night, according to investigators, Ravi used a video camera that he had set up in his dormitory room to live stream Clementi’s intimate encounter on the Internet. Three days later, Clementi, by all accounts a fine person and an accomplished violinist — killed himself by jumping from the George Washington Bridge into the Hudson River. A promising young life that could have brought beautiful music into the world, amidst all the ugliness this world can offer, gone. This is just the latest in a series of deaths by young American, all of which followed the online posting of vicious and hurtful material.

The Middlesex County, New Jersey District Attorney’s office have charged Clementi’s roommate, Dharun Ravi, 18, of Plainsboro, N.J., and Molly Wei, 18, of Princeton Junction, N.J., each with two counts of invasion of privacy for using “the camera to view and transmit a live image” of Mr. Clementi. In addition, Ravi was charged with two additional counts of invasion of privacy for attempting to post a similar live feed on the Internet on Sept. 21, the day before Clementi’s suicide. In New Jersey, the most serious charges carry a maximum sentence of five years.

Social media: “A great way to bring us all closer together”; “A superior technological development”; “A resource to help us understand each other.” These are just some of the descriptions I recall hearing about services such as Facebook, Twitter, YouTube and other such social media sites. It hasn’t really turned out all so rosy, has it? Instead, "social media" seems to have brought out some of the worst parts of the human being: The cruel, the harmful, the amoral and the immoral. Brought us “closer together”? You’ve got to be kidding. Prior to social media and the internet, people actually got together to talk. They’d actually get off their couches and go to see someone, face-to-face. However it may seem a distant memory, that’s how people stayed close and connected. Now, the average person would respond to a suggestion that two social friends actually meet, with a confused annoyance. (“Why would I do that when I can just Facebook or email you?”)All this, in my view, degrades us and alienates us socially, but this blog isn’t about sociology, it’s about Massachusetts personal injury law. So in Part Two of this post I'll discuss the possible civil law ramifications of events like this. In the meantime, let us hope that the criminal justice system in New Jersey, can move fast and effectively in this case.

In my previous post on this story, I discussed the horrific events surrounding the murders of the wife and two daughters of Dr. William Petit, in the 2007 Cheshire, Connecticut home invasion murders. I’ll now discuss why I believe there is a distinct possibility that the Cheshire Connecticut Police Department may possibly be exposed to a civil liability suit for negligence and wrongful death, owing to the police department’s failure to act in a reasonable or timely manner to rescue the Petit family.

To begin with, a (very) quick review of the tort of wrongful death: As I explain on my website page dealing with wrongful death, this is a rather broad legal term that is used to describe a situation where the death of a person would not have taken place under the circumstances that it did, except for some negligence that occurred on the part of another party. The circumstances surrounding a “wrongful death” can be varied: A loved one might have died as a result of medical negligence, a motor vehicle accident, a construction injury, or a defective product. A wrongful death suit is usually brought by a family member or a representative of the deceased victim’s estate. (If such a suit were brought here, the party filing the suit and seeking damages would be the representative(s) of the estate(s) of Dr. Petit’s wife and two daughters. A wrongful death suit seeks the recovery of damages for the surviving family's or the estate's benefit as a result of the victim's death.)

Were such a suit brought in this case, the plaintiff(s) would have to show that, but for the Cheshire Police Department’s failure to intervene in a timely manner to rescue Dr. Petit’s family, Mrs. Petit and Dr. Petit’s two daughters would not likely have perished. This could either be a daunting task, or a fairly easy one, and the success or failure of such a suit would likely come down to expert testimony. The plaintiff(s) would need to produce experts in the field of law enforcement and hostage situations, to show that the Cheshire Police Department’s failure to take any action other than to place themselves outside the Petit home, for almost 35 minutes, was unreasonable given the specific circumstances present.

I do not have immediate access to the formal police report regarding this matter, but, from what I have been able to uncover from published reports, the Cheshire Police Department captain commanding this response ordered his men to stand down and take no rescue measures for almost 35 minutes from the time they were first informed of this situation by the bank manager where Mrs. Petit had first pleaded for help. Police did not approach the house in any manner, other than to establish a perimeter. From what I am aware of at this writing, neither did Cheshire police officials alert the Connecticut State Police, the Cheshire Fire Department, or rescue/EMS personnel. During that entire time, Mrs. Petit and her two daughters were being savagely terrorized, sexually assaulted, strangled, doused with gasoline and murdered.

Recently, at the criminal trial of the two animals who are charged with these murders (and who, it is reported, previously offered to plead guilty if they could be spared the death penalty,) a Cheshire Police Department official explained his Department’s failure to intervene more forcefully as follows: “We had no reason to believe the family was in any immediate danger.” Frankly, given what I know of this incident to date, and the circumstances that were present on that scene, as a Massachusetts wrongful death attorney, I find this statement outrageous.

Legally, if a claim for wrongful death were brought in this case, the plaintiff would have to prove (to a likely standard of ‘clear and convincing evidence’) that Cheshire police officials acted unreasonably given the circumstances that were present. It would not have to be proven that police officials specifically knew that the Petit family was being beaten and murdered while they remained stationary outside (and I don’t infer here that police officials did know this.) All that would have to be shown, is that under these circumstances, it was unreasonable and negligent of police to:

a) Take no intervening rescue action of their own
b) Make no efforts to establish phone or loudspeaker contact with the captors inside the house
c) Fail to alert or call in the Connecticut State Police or SWAT teams
d) Fail to notify or call in the Cheshire Fire Department, EMS or ambulance personnel

To successfully prove this, would involve a “battle of the experts”: The plaintiff(s) would have to produce experts in the field of law enforcement, hostage takings and police crisis management, to persuasively testify that the actions of the Cheshire Police Department deviated from the normal and customary police response that was called for in the type of situation as was presented that horrific day in 2007. The defense, too, would produce its own experts to testify that under the circumstances presented, police officials were not unreasonable in taking – and more importantly, failing to take – the actions they did. As always in such a case, the jury would consider this opposing testimony, along with other evidence in the form of treatises and training manuals from various local, state and federal law enforcement agencies, on the subject of hostage-taking. In the end, the jury would have to weigh all the competing evidence and testimony, and answer a question that in sum, would separately ask as follows:

• “Was the Cheshire Police Department negligent in its actions surrounding this incident?
• “Were the actions of the Cheshire Police Department reasonable under these circumstances?”
• “Did the Cheshire Connecticut Police Department (and any named officials within that Department) deviate from standard or recommended hostage rescue protocol in this situation?”

My questions surrounding the Cheshire Connecticut Police Department’s actions (or inactions) in this matter isn’t a broadside against police in general. I know many fine and talented police officers and law enforcement officials, and in the vast majority of crisis situations, they are the ones who save the day. What really disturbs me about this case, is not only the response of the police commanders on that day, but the present response of the Town of Cheshire’s attorneys. Notwithstanding the adversarial nature of our court system, which as a practicing attorney I respect, there occasionally comes a time to admit when your client is wrong, offer to make any reasonable amends that you can, and sleep at night knowing that you did the morally correct thing. If I were legal counsel for the town of Cheshire, and I believed that police officials acted negligently in this case, my advice would be as follows:

“The Department and the Town has a choice: You can go into court and claim that police did nothing wrong here, and make outlandish, literally unbelievable statements such as “We didn’t believe this family was in any immediate danger." You can then squirm in shame, and look like fools when testimony comes out as to what was being done to Dr. Petit’s family while the town’s police Department waited outside, doing nothing. Or, you can avoid an ugly, tortuous lawsuit by admitting that mistakes were made here; offer sincere apologies to Dr. Petit, offer him reasonable damages under a confidentiality clause, and promise to revamp how such situations are responded to in the future. I could not witness the devastation that resulted to Dr. Petit’s family, and do anything else. Apparently, the attorney for the Town of Cheshire felt it more appropriate to instruct police officials at the criminal trial of the defendants, to offer up “We didn’t believe this family was in any immediate danger.” This attorney may well know facts that I, and the media, have not yet uncovered. Then again, maybe we sleep differently at night.

This would be a tough, and interesting, case to try. If I practiced law in Connecticut, I wouldn’t mind taking this case.