INDIANAPOLIS (Legal Newsline) – Parents of a boy who was sent on a dangerous odyssey rather than put on a school bus home have a second chance to sue their school district.
On Jan. 31, the Indiana Court of Appeals overturned a Marion County ruling that granted immunity to Indianapolis Public Schools in the lawsuit of the parents of DeShawn Yarbrough.
The parents sued IPS for negligence after 7-year-old DeShawn was taken out of a waiting line for a bus on his second day of first grade - even though his backpack had the designated blue tag for students who ride buses.
An unknown teacher who may have been acting on misinformation removed DeShawn from the bus line and told him he was supposed to walk home, even though he showed her his blue tag. DeShawn lived 1.2 miles from the school and had no idea how to get home.
Alone, on an August day in 2018, he walked more than a mile in the wrong direction, encountered a homeless man, fell when he was chased by dogs and crossed a major thoroughfare alone at rush hour, the decision says.
A stranger found him and called the school and police, then messaged DeShawn’s mother on Facebook. Fortunately, he made it home safe.
His parents filed a negligence lawsuit, alleging the school breached its duty of reasonable care and supervision and that they are entitled to damages for mental anguish. The case has drawn the attention of the Indiana Trial Lawyers Association.
The trial court found the alleged injury arose from the school’s failure to properly enforce a school policy that the school district was entitled to governmental immunity.
However, the Court of Appeals has reversed that decision and sent the case back to Marion County, finding favor with arguments from the plaintiffs and the ITLA that immunity does not apply when a school fails to properly follow its own dismissal procedures, even if they are a “policy” as described in that section of law.
“(A) school may not claim immunity when sued regarding its own compliance, or failure to comply, with laws and regulations or a school policy,” Judge Terry Crone wrote.
“Parents do not allege that the school harmed DeShawn by failing to compel his obedience to its dismissal procedures, but rather that the school itself failed to properly follow the procedures that were meant to provide for their son’s safety and well-being.
“The school’s attempt to recast the parents’ negligence claim as one involving the enforcement of a school policy ‘as to how to facilitate student transportation upon dismissal’ is unpersuasive.”
The school district also attempted to insulate itself from liability by arguing the lawsuit is based solely on the actions of the teacher who removed DeShawn from the bus line.
The teacher was a substitute and thus an independent contractor. But the court noted she might have been acting on bad information that could have been given by a school employee, so there are still disputed issues that prevent the school district from being entitled to summary judgment.
That issue will be sorted at the trial court level, should the case continue toward trial.