Articles Posted in School Liability

I’m going to weigh in here on the subject of sports and the subject of sports-related brain injuries, specifically chronic traumatic encephalopathy (CTE.)   CTE is caused by repeated and violent blows/impacts to the head, such as occur in boxing, football, rugby and hockey, and has become much more understood in recent years. A variety of psychological, neurological and behavioral symptoms result, which I’ll discuss at more length, below.

I think it important that this subject be addressed legally, especially in light of the $20 million lawsuit that the family of former New England Patriots football player Aaron Hernandez has filed against the New England Patriots and the NFL. Hernandez’ family is basing their claim on the fact that an autopsy of Hernandez’ brain showed that he suffered from CTE   Hernandez, as we all know, killed himself in prison after being convicted of the murder of another former NFL player, Odin Lloyd, in June of 2013. Continue reading

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.

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.

In my previous post on this subject (apologies that I haven’t followed it up earlier,) I discussed the ongoing tragedy of bullying in schools, and of how the most recent victim was a young girl in South Hadley by the name of Phoebe Prince, who committed suicide after repeated abuse by a group of girls at South Hadley High School. I also discussed how, up until perhaps now, there has been almost no statutory vehicle in Massachusetts to attach civil liability to school administrators or personnel – public or private – for injuries and harm done to children bullied at school. A recent Massachusetts Superior Court decision may – just may – have opened the door to legal changes much needed in this area of civil justice.

The case, Parsons, et. al., vs. Town of Tewksbury, et. al., involved a Tewksbury Middle School student and his parents who sued the Town of Tewksbury and school personnel for negligence, and other counts, in not intervening to protect this student from repeated bullying by other classmates at the school. The case reveals a shocking level of violence inflicted against the young student, and even more shocking negligence in the form of inaction by school personnel to intervene and protect this young boy from savage abuse at the hands of other students. The facts are truly horrific. I trust that my readers are familiar with the term “Dumbing Down”, to describe how people are in general nowhere near as well educated in this country as they were in decades past (and if anyone has any doubts about that, just watch one of Jay Leno’s famous “Jay Walking” pieces, where he asks average Americans questions about the most basic subjects, and 99% don’t have a clue as to the answers.) While stories like this case from Tewksbury must be told, I believe that in the process they can create a “Numbing Down” in people: The effect is that, horrific as a story like this is, it fails to provoke outrage or shock in people. The reason: Violence and indifference is so increasingly widespread in our culture. Too many people read of horrific stories like this, and just turn the page. I hope that won’t happen here. I wish to also say that, while some lawyers see hope in this decision, as a Boston injury attorney, I find this decision disappointingly weak. It’s my legal opinion that this judge should have found liability against the town and the school in this case (which he did not,) and that he should have issued much stronger language.

The case begins in April 2006 with young Nicholas Parsons, a student at Tewksbury’s Wynn Middle School, who was being repeatedly assaulted and battered by a group of other students at this school. Young Parsons reportedly had fallen out of friendship with a group of male students who made it a practice of harassing and threatening weaker students. Parsons told the school guidance counselor, Adam Colantuoni (who was also named as one of the defendants in the suit,) that these bullies had been harassing him repeatedly. The plaintiffs’ suit alleges that Colantuoni took little to no action to halt the assaults. Not long after Parsons had reported the problem to Colantuoni (the school’s “guidance counselor”,) the leader of the bullying group, a student by the name of Tyler Willette, ordered another student to slam Parsons’ head with a book. Not only did this other student carry out this order, he did it in the presence of a teacher, who sent the attacking student to the school’s “behavior management facilitator,” a man by the name of Robert Ware (who was also a named defendant in this suit.) By all credible accounts, Ware neglected to discipline the assaulting student, instead merely ordering the boys to apologize to each other. In the event you’re wondering where this gets worse, read on.

My readers of this blog know that I’ve previously written about the subject of bullying (a 3-Part post; after reading each post, click on “Next” to take you the Parts 2 and 3) in schools in Massachusetts – and of the tragic consequences that follow. The last time I wrote of this subject, had to do with the suicide death of Carl Joseph Walker-Hoover in the New Leadership Charter School in Springfield. Just a few weeks ago, the equally horrific story of Phoebe Prince was placed before a stunned public. Phoebe Prince was a beautiful young girl whose family recently emigrated from Ireland, to start a new life here. Except that new life was met with death – death at the hands of a sadistically cruel group of ‘mean girls’ from the school Prince attended, South Hadley High School. Those girls targeted the Prince girl because she was apparently the object of a male student’s attention. (It’s also been stated by more than one person at the school, that these girls targeted Prince because she was pretty.) The girls repeatedly bullied the Prince girl, taunting her physically as well as through mentally sadistic use of social media such as Facebook and MySpace, calling her a ‘slut’ and worse. The Prince girl’s parents approached the school’s administrators on more than one occasion, pleading with them to take strong steps to protect their daughter from these abusive classmates, only to see the mildest, most anemic of responses taken to protect this poor girl.

On January 14 2010, Phoebe Prince went home and hung herself in her closet. Her sister found her.

The shocked protests from parents throughout the town arose, their voices shocked and sickened. The South Hadley police promised a ‘full and complete’ investigation. The media both reported on – and editorialized on – the school’s failure to act aggressively to protect the girl. Legislators fumed about “doing something about this” in the state legislature. All the while, the South Hadely School Department engaged in two predictable – and pathetic – tactics: Demurral and denial. And the sadistic ‘mean girls’ who essentially murdered this innocent youth? Whose repeated assault and battery and mental torture drove her to take her own life? Legally, they may be untouchable. There may be nothing that can be done to prosecute them. These twisted, ugly girls (ugly in the deepest, most lasting sense,) were actually widely rumored to openly laugh at how they ‘snowed’ police investigators who earlier questioned them about their actions and Prince’s suicide. It’ not yet clear that the Northwestern District Attorney’s office, might be able to prosecute these girls.

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