This article was originally posted on the blog of Plews Shadley Racher & Braun LLP on Nov. 24, 2014. You can view it here or view it below.
By Todd Relue, Plews Shadley Racher & Braun LLP
The Indiana Supreme Court recently denied transfer in M.S.D. of Martinsville v. Jackson, which involved a lawsuit brought against the school district by the parents of two students injured during a school shooting. This means the Indiana Court of Appeals’ May 19, 2014 ruling affirming the denial of the school district’s summary judgment motion stands and the school district faces trial on these claims.
The shooting at issue occurred on March 25, 2011 when Michael Phelps, a former eighth-grade student, entered the school building before classes began and shot another student with whom he had prior altercations. Another student who was standing near the victim was injured by the ejected shell casings. The parents of the injured students claimed the school district was negligent in leaving a door to the school unlocked, allowing Phelps to enter, and failing to instruct school monitors that Phelps posed a threat, to look for him on school property, and to call the police if he was seen. The school district moved for summary judgment claiming that it was immune from liability under the Indiana Tort Claims Act (ITCA), it did not breach a duty to the injured students, and the student targeted by Phelps was contributorily negligent.
The ITCA provides that a government entity or employee acting within the scope of its duties will not be liable for losses resulting from the “performance of a discretionary function.” Ind. Code §34-13-3-3(7). Relying on the Indiana Supreme Court’s decision in Peavler v. Bd. of Comm’rs of Monroe County, the court found that only “policy decisions that have resulted from a conscious balancing of risks and benefits and/or weighing of priorities” are entitled to protection under the ITCA. 528 N.E.2d 40 (Ind. 1988). The goal of this standard is to insulate from liability “only those significant policy and political decisions which cannot be assessed by customary tort standards” and “the exercise of political power which is held accountable only to the Constitution or the political process.” Id. at 45.
The school district claimed it was entitled to protection because the school’s principal had developed a safety plan that was in use on the morning of the shooting. The district represented this safety plan resulted from the principal’s conscious balancing of risks, benefits, and budget constraints and, thus, was protected under the ITCA. The court rejected this argument on two grounds. First, it held that the safety plan was not created in a manner that would warrant insulation under the ITCA. This is because the public officials with policy-making authority are the members of the school board. School principals are at least two levels removed from the school board and, thus, plans developed by principals without involvement from the school board were not protected. Second, even if the safety plan was protected, the parents’ claims did not challenge the formulation of the plan, but whether it was properly implemented on the day of the shooting. Thus, the school district has no protection from the parents’ claims under the ITCA.
The school district further argued that it was not negligent because the shooting was not sufficiently foreseeable. It is well-established that schools owe a higher duty of care to students than mere standard premises liability. Schools must exercise the level of care that an ordinary, prudent person would exercise under similar circumstances. Swanson v. Wabash College, 504 N.E.2d 327,330 (Ind. Ct. App. 1987). If the school breaches that duty, it is liable for injuries that are the “natural and probable consequences” of the breach that “should reasonably have been foreseen or anticipated.” Havert v. Caldwell, 452 N.E.2d 154, 158 (Ind. 1983).
Here, the court found that a teacher had overheard an earlier verbal altercation between Phelps and the victim and was subsequently informed by the victim that Phelps wanted to fight him. A student also submitted an affidavit stating that she had advance knowledge of Phelps’s plan and had informed the principal, but that her warning had been ignored. The school district challenged this affidavit because it conflicted with the student’s deposition testimony and argued that the overheard altercation, which occurred three weeks before the shooting, was insufficient to render the shooting foreseeable especially since Phelps had subsequently been withdrawn from the school. The court determined, however, that because Phelps had a history of serious misbehavior, had previously threatened the victim and to blow up the school, and was on the school grounds at least 30 minutes before the shooting occurred, a jury could reasonably determine that the shooting was foreseeable. Thus, summary judgment for the school on this basis was inappropriate.
The school district also claimed the victim’s own contributory negligence led to his injuries. The school district alleged the victim had advance notice Phelps was at the school and making threats against him, but did not seek assistance from an adult despite a text message from his mother directing him to go to the principal’s office. Governmental entities are specifically exempted from the Comparative Fault Act and remain protected by common law standards under which any contributory negligence by the victim bars recovery. Clay City School Corp. v. Timberman, 918 N.E.2d 292, 300 n.6 (Ind. 2009). The court noted a disconnect between the school district’s arguments that it could not foresee the shooting, but that the victim should have foreseen not going to the office that morning would lead to his injuries. Due to the numerous conflicting facts involved in the determination of the victim’s contributory negligence, the court held this was a question best resolved by a jury.
What does this mean for schools? The Court of Appeals ruling suggests that involvement of school board members in developing plans, such as safety plans, may afford additional protections under the ITCA. However, that would not protect the school from allegations it was negligent in implementing the plans. Due to the prevalence of factual issues and the nature of the judgments to be made in negligence actions, such claims are exceedingly difficult to dispose of at the summary judgment stage. As a result, cash-strapped school districts in Indiana are likely to put greater consideration into settling claims brought by injured students rather than face potential extended litigation and the uncertainties of a jury verdict.
This article was written by Todd Relue of Plews Shadley Racher & Braun LLP. If you would like to submit content or write an article for the Appellate Practice Section page, please email Mary Kay Price at firstname.lastname@example.org.