In the Indiana news this week are all sorts of tragic cases involving serious injuries and even the death of someone’s child while they were away from home, at school, where parents had entrusted the school system and its teachers and staff with protecting their children and keeping kids safe. Aside from the all too common sporting injuries during practices and games, consider these events as reported in the local news media this week:
1. a former teacher (and now Bengals cheerleader) is accused of having a sexual relationship with a high school boy while she was acting in the role of teacher, she pled not guilty this week to pending criminal charges;
2. it has been announced that the Illinois State Crime Lab will release DNA test results of skeletal remains discovered in Newton are those of missing Indiana University student Lauren Spierer, who went missing on June 3, 2011, after last being seen when she was out with some friends.
3. yesterday, a former student returned to the campus of Oikos University and began shooting, killing 7 people and wounding 3 others.
Who Can Parents Hold Responsible For Serious Harm or Death of Their Child?
In every state in the United States, laws have been passed that not only establish school districts and public universities, but also set up financial protections for them including immunity from suit. In other words, in some instances, parents will face defense claims of school immunity when they assert claims against those they argue are responsible for their child’s injuries and/or wrongful death.
With their attorney, they will need to analyze their particular situation. First of all, school districts will be treated differently under the law than institutes of higher education. Additionally, private institutions may have different treatment under the statutes than public ones. Finally, the type of injury may have a bearing on the claims that can be pursued and against whom they can be made.
Every personal injury lawsuit involves two basic duties: to prove liability under the law and secondly, to prove damages (the harm that has happened and its consequences). The defendant will attempt to narrow those damage claims by things like expert testimony on the scope of the injury and things like the estimated cost of the long term care or physical therapy needs. The defendant will challenge the liability part of the case not only by pointing the finger at others (who was the true cause of the harm) but by trying to throw up a legal shield, if they can.
Exceptions to Immunity
One of these shields is immunity – which means that they are legally protected and not liable as a matter of law, even the plaintiff has an iron-clad case of liability and damages all ready to go before the jury.
If the defendant asserts immunity, is your case over? No.
Under the law, there can be exceptions to immunity – times when immunity shields cannot be used. Gross negligence is one example. Criminal acts are another. What those exceptions will be depends upon the state and not only what its legislature has passed into law but what state and federal courts have held to be effective law in that state. Federal constitutional protections (e.g., civil rights) can overpower and overrule the application of a state immunity law.
Other Avenues to Justice
Finally, there are other avenues to consider. For example, in instances of private educational facilities, their insurance policies may cover the injuries that have been sustained by the child. The teacher may be personally responsible if they have acted outside the scope of their employment (and for sure, the district or institution will be arguing this to be the case). Sometimes, broader legal arguments can be made, for example all school buses should have seat belts (which may include the bus manufacturer as a defendant) or the alarm failed to activate in a school shooting or fire (bringing in the alarm company and the manufacturer as additional defendants).
When your child has been seriously injured or killed while at school, then grieving parents need to investigate all their legal avenues for justice. Not only for their child, but to protect children in the future from similar tragedies. Sometimes, it is only the injury lawsuit that can bring real change in this country.