Jennifer Nelson for www.theindianalawyer.com
The Indiana Supreme Court has ordered further proceedings in a negligence lawsuit filed by the parents of a special needs student who died after choking on her lunch at school. The justices found there are questions as to whether the parents complied with tort claim notice requirements, so judgment in favor of the defendants is not proper.
Megan Lyons was a 17-year-old student at Richmond High School when she choked on food while eating. She had Down Syndrome and was severely disabled, so the school had a safety plan in place for her. Part of it included having someone monitor her while she eats because she tended to swallow food whole and shovel food into her mouth.
On the day she choked, a different paraprofessional was assigned to supervise her and did not know to cut up her food. Megan began to choke and staff attempted to clear her throat by pounding on her back. Staff did not immediately call 9-1-1 nor attempt the Heimlich maneuver or CPR. Eventually her airway was cleared and she was taken to the hospital. Megan died three days later.
The school’s food services coordinator told cafeteria worker Rhonda Swearingen and three others who witnessed the incident that they would be fired if they spoke to anyone about the incident. Nearly 10 months later, Swearingen contacted Megan’s father, Michael Lyons, and told him that “things were not done properly†during the emergency. On Jan. 11, 2010, more than a year after Megan’s death, the Lyonses filed a notice of tort claim, then sued the school corporation and various staff members, alleging negligence, wrongful death and federal civil rights violations.
The trial court ruled in favor of the defendants, but a divided Court of Appeals ruled the defendants were only entitled to summary judgment on the federal claims. The decision was affirmed on a rehearing sought by the school.
The justices summarily affirmed the COA on several claims, including that summary judgment on the state law claims was inappropriate and that material issues of fact remain as to whether the discovery rule should apply to excuse the Lyonses’ noncompliance with the ITCA notice requirement.
Justice Mark Massa also noted based upon the record, a factfinder could reasonably find the defendants committed active fraudulent concealment.
The justices offered suggested jury instructions for the trial court to handle the application of the discovery rule. The COA ruled that it was a question of fact for the jury, but on rehearing said it was a question of law for the trial court. The justices agreed on both counts. The question of whether a plaintiff has complied with the requirements of the ITCA is one of law, but the answer may depend on the resolution of disputed facts.
Massa also suggested perhaps the General Assembly should consider the issue of whether there should be a public policy favoring disclosure of student information to parents.
“Finally, although we are sympathetic to the Lyonses’ public policy arguments, we must decline their invitation to establish a completely new legal duty here. But we encourage our General Assembly, charged with making policy for our state, to consider this issue carefully. It may be that, in this age of near-universal and compulsory education, when our schools provide myriad counseling, physical therapy recreation, and special needs assistance for our children, they should be required to disclose vital information about a student to the persons most intimately concerned—the student’s parents,†he wrote.
