Toledo educators did not act with a “perverse disregard of a known risk” when one kindergartner allegedly punctured the face of another with a pencil, and the injured child’s parents cannot sue the staff for failing to address alleged bullying, the Ohio Supreme Court ruled today.

A Supreme Court majority affirmed the decision of the Lucas County Common Pleas Court, which found the DeVeaux Elementary School staff members were immune from liability. The Court found that the child’s family failed to produce any evidence the staff knew or had reason to know the classmate of the injured child posed a risk of physical harm to the injured child or any other student.

The parents of the injured child, identified in court records as A.J.R., appealed the lower court’s granting of summary judgment to the Sixth District Court of Appeals, which assigned judges from the Summit County-based Ninth District Court of Appeals to consider the case. In a 2-1 decision, the appellate court ruled the case should proceed to trial to determine if the educators were reckless based on the information A.J.R.’s parents provided to the school.

Writing for the majority, Justice Patrick F. Fischer stated that for the family to prevail in their lawsuit they had to prove that the educators were aware the other student, identified as S., may cause physical harm to A.J.R. and that the educators acted with conscious disregard or indifference to that knowledge. Justice Fischer stated that “just the opposite” occurred, and that the teacher, principal, and assistant principal took steps to curtail bullying.

Chief Justice Maureen O’Connor and Justices Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined Justice Fischer’s opinion. Justice Sharon L. Kennedy concurred in judgment only.

Teasing Escalates to Pencil Poke
A.J.R.’s parents allege that their 4-year-old daughter was enrolled in a DeVeaux kindergarten class and she was subject to teasing and being called a “baby” by 5-year-old students. The parents said that A.J.R. was subject to name-calling, teasing, social exclusion, and physical bullying and that the bullying culminated with S. poking A.J.R. with a sharpened pencil while both were seated at the same table in the classroom of Amanda Lute.

In their lawsuit against the school system and the educators, the parents asserted they took various steps during the school year to alert Lute, principal Ralph Schade, and acting assistant principal Cynthia Skaff about the incidents occurring in the 2015-2016 school year.

Schade stated that after being informed that A.J.R. had been teased, he spoke to S. and other students, and the teasing stopped. He said he frequently checked in with A.J.R., who told him things were OK, and he observed that she frequently sat at the same lunch table as the student who teased her. Skaff also said she spoke to A.J.R. and S. after the initial teasing report, and the two appeared to be friends.

Educators Claim Immunity
In response to the lawsuit, Schade, Skaff, and Lute sought the immunity from personal liability granted to public employees under R.C. 2744.03(A)(6). The three asked the court for summary judgment, arguing the family failed to produce any evidence that would exempt the educators from receiving immunity, which includes proof of acting with a malicious purpose, in bad faith, or in a wanton or reckless manner with respect to A.J.R.

The trial court granted immunity, finding the family produced no evidence that S. had a history of physically harming other students or staff, and that without the evidence, there was no way to demonstrate the educators disregarded or were indifferent to any risks.

When the family appealed, the three sitting appellate judges issued separate decisions. The lead opinion noted the parents reported evidence of physical contact, involving A.J.R. getting pushed in a bathroom line, and that they notified school officials at least four times about incidents of bullying and harassment before the alleged pencil incident took place. The opinion stated that Lute made S. apologize to A.J.R. after the alleged incident, but Lute did not tell A.J.R.’s parents about it.

The judge wrote a “genuine issue of material fact” existed that required further proceedings by the trial court to determine whether the staff members were reckless. Another judge disagreed with the lead opinion’s analysis, but also found there was enough information presented by the parents for the trial court to continue to hear the case.

The educators appealed the decision to the Supreme Court, which agreed to hear the case.

Court Considered if Educators Were Reckless
Justice Fischer explained that because the teachers were immune from liability under state law, they could only be sued under R.C. 2744.03(A)(6)(b) if the employees’ actions or failure to act were reckless.

The opinion noted the Court in prior opinions has defined “recklessness” as a “perverse disregard of a known risk.” The Court explained in its 2012 Anderson v. Massillon decision that “reckless conduct” is the “conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.”

Based on these standards, the lower courts attempted to determine whether Lute, Skaff, and Schade had knowledge of any risk to A.J.R. of physical harm by S. The opinion stated the three staff members were generally aware that A.J.R. had been subjected to verbal bullying, and the only evidence of physical harm was that S. had once pushed A.J.R. while they were in a line at school.

“The record is unclear on the extent of this pushing. Beyond the general assertion that S. pushed A.J.R. while they were in line, the family failed to offer any evidence indicating that S. had a history or record of physical bullying or aggressiveness,” the opinion stated.

Staff Did Not Disregard Behavior
The opinion stated that while the Court found no evidence that the educators should have been aware that S. would physically harm A.J.R., even if they had known, they did not disregard the risk. The Court found that all three educators took time to address A.J.R.’s class to curtail any bullying and communicated with A.J.R. to ensure she was doing well and not experiencing further bullying.

The Court found it was not reckless conduct to seat S. and A.J.R. together at the same table with sharpened pencils because the teacher could not know that based on prior incidents of verbal bullying or a push in line that the seating arrangement would in all probability lead to a physical injury by S. to A.J.R.

Because the educators did not perversely disregard a known risk, they could not have been reckless, and the trial court correctly ruled in the educators’ favor, the opinion stated. The Court reinstated the trial court’s decision to grant summary judgment and end the case against the staff members.

2019-1355. A.J.R. v. Lute, Slip Opinion No. 2020-Ohio-5168.

View oral argument video of this case.

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