School board immune from negligence suit

A school board was entitled to immunity from a negligence suit stemming from an alleged attack on an autistic child on a school bus because the plaintiff’s injuries did not relate to the operation of the bus, the Supreme Court of Virginia has held in reversing a Circuit Court decision.

The suit was filed by the father of the child. He claimed that school employees verbally abused his son, struck him in the face with his wet sock and allowed him to get off the bus naked from the waist down.

The complaint alleged gross negligence by the school board and by certain named employees and sought $15 million in compensatory and punitive damages.

Justice Stephen R. McCullough wrote the opinion for the court, which concluded that sovereign immunity applied because “the plaintiff’s injuries do not relate in any way to the way the bus was being operated or to the process of loading or unloading of passengers. Instead, the school bus was merely the situs of the alleged tort.

“In other words, the actions that are the subject of the complaint may have happened on the bus, but they did not involve the bus as a vehicle.”

However, while the school board could assert sovereign immunity, suit could proceed against the school employees.

The six-page opinion is Newport News School Board v. Z.M. (VLW 025-6-014).

‘No uncertain terms’

Jeffrey A. Hunn, an attorney with Pender & Coward in Virginia Beach, represented the school board. He said the court’s decision in this case is important because it confirms that a school can benefit from immunity whether the claims involve simple negligence, gross negligence or even an intentional tort.

Hunn’s colleague Anne C. Lahren added that the immunity of school boards has “been under attack by the lower courts in recent years.”

But the present case states that school boards have sovereign immunity “in no uncertain terms,” she said.

“It’s really the most distinct and clear opinion I’ve read in a long time, saying basically ‘unless there’s a statute, you can’t sue, period, end of story,’” Lahren said.

Matthew D. Green, an attorney with Sands Anderson in Richmond, said the opinion reiterates a “decades old rule of statutory interpretation by strictly enforcing the plain meaning of the words adopted by the General Assembly.”

Without a General Assembly waiver, said Richmond-based attorney Nicholas Simopoulos, “no plausible or viable strategy exists to file a civil action in tort against a locality or school board for the maintenance and operation of schools, including employee conduct on a bus when no accident is involved.”

Despite this, he said that several legal remedies exist, including filing a tort action against a locality or school board’s employees, as the plaintiff did in this case.

The plaintiff’s attorney, Kenneth B. Murov of Newport News, did not respond to a request for comment before deadline.

Insults and threats

The plaintiff attended the Center for Autism at Kiln Creek Elementary School, which is part of the Newport News School Division.  His father alleged that when the plaintiff was riding the bus home, school division employees struck him in the face with a wet sock and twice told him that they wished they could “whip his tail.”

After the plaintiff removed his pants and diaper, the school employees allowed him to exit the bus without any clothes on the lower part of his body. The complaint also alleged that school employees had insulted the plaintiff the previous day, saying he was acting like an “animal” and a “monkey.”

In response to the suit, the school board asserted sovereign immunity.  Relying on Virginia Code § 22.1-194, the circuit court denied the plea with respect to the plaintiff’s claims of simple and gross negligence but granted the plea on the question of punitive damages, holding that sovereign immunity foreclosed such damages.

The school board filed an interlocutory appeal.

Vehicle not ‘involved in accident’

The Supreme Court of Virginia’s decision stated that the heart of the case was “whether Code § 22.1-194 waives the Commonwealth’s sovereign immunity for degrading acts that school staff are alleged to have perpetrated on an autistic child — acts alleged to have happened on a school bus, but which do not implicate the operation of the bus as a means of transportation.”

It concluded that the statutory language, which waives sovereign immunity when “‘a vehicle [is] involved in an accident,’ does not waive sovereign immunity on such alleged facts.”

Further, “the court need not establish the outer reach of what the term ‘accident’ might mean because the allegations here — that the plaintiff was struck, insulted and allowed to leave the bus partially unclothed — do not even plausibly establish the prerequisite of a vehicle ‘involved in an accident.’ The school bus itself was not involved in any accident.”

McCullough also wrote that “the cases [the plaintiff] cites all involved allegations of gross negligence against an employee of the government, not the actual sovereign itself.”

But while sovereign immunity protected the school board from suit, the same is not true for the employees facing suit.

“Because the plaintiff alleges that these employees were grossly negligent, the action may proceed against the employees, who are not protected by derivative sovereign immunity in that circumstance,” McCullough wrote.