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Daily Court Reporter - Kindergartner bullying case: Toledo educators cannot be sued


Kindergartner bullying case: Toledo educators cannot be sued

Dan Trevas, Supreme Court of Ohio

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 recently.

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.

The opinion can be found online at:

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

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

About the Supreme Court of Ohio

The Supreme Court is established by Article IV, Section 1 of the Ohio Constitution. Article IV, Section 2 of the Constitution sets the size of the Court and outlines its jurisdiction. Article IV, Section 5 of the Constitution grants rule making and other authority to the Court.

The Supreme Court is the court of last resort in Ohio. Most of its cases are appeals from the 12 district courts of appeals. The Court may grant leave to appeal felony cases from the courts of appeals and may direct a court of appeals to certify its record in any civil or misdemeanor case that the Court finds to be "of public or great general interest."

The Supreme Court also has appellate jurisdiction in cases involving questions arising under the Ohio or United States Constitutions, cases originating in the courts of appeals, and cases in which there have been conflicting opinions on the same question from two or more courts of appeals. The Supreme Court hears all cases in which the death penalty has been imposed. These cases currently include both appeals from courts of appeals affirming imposition of the death penalty by a trial court and, for capital crimes committed on or after Jan. 1, 1995, appeals taken directly from the trial courts. Finally, the Supreme Court's appellate jurisdiction extends to review of the actions of certain administrative agencies, including the Public Utilities Commission.

The Supreme Court has original jurisdiction to issue extraordinary writs. These include writs of habeas corpus (inquiring into the cause of an allegedly unlawful imprisonment or deprivation of custody), writs of mandamus (ordering a public official to perform a required act), writs of procedendo (compelling a lower court to proceed to judgment in a case), writs of prohibition (ordering a lower court to stop abusing or usurping judicial functions), and writs of quo warranto (issued against a person or corporation for usurpation, misuse, or abuse of public office or corporate office or franchise).

The Constitution grants the Supreme Court exclusive authority to regulate admission to the practice of law, the discipline of attorneys admitted to practice, and all other matters relating to the practice of law. In connection with this grant of authority, the Supreme Court has promulgated the Supreme Court Rules for the Government of the Bar of Ohio. These rules address, among other things, admission to practice, attorney discipline, attorney registration, continuing legal education, and unauthorized practice of law.

The Constitution also gives the Supreme Court authority to prescribe rules governing practice and procedure in all courts of the state and to exercise general superintendence over all state courts. Procedural rules promulgated by the Supreme Court become effective unless both houses of the General Assembly adopt a concurrent resolution of disapproval. Rules of superintendence over state courts set minimum standards for court administration. Unlike procedural rules, rules of superintendence do not have to be submitted to the General Assembly to become effective.

In connection with all of the rules for which it has responsibility, the Supreme Court generally solicits public comment before adopting new rules or amendments in final form. The Court first publishes its rules and amendments in proposed form. These proposals appear in both the Ohio State Bar Association Reports and the Ohio Official Advance Sheets and indicate the period open for comment and the staff member to whom comments should be directed. The Court reviews all comments submitted before it decides whether to adopt or amend a rule.

Pursuant to the Constitution, the Chief Justice or a Justice designated by the Chief Justice is responsible for ruling on the disqualification of appellate and common pleas court judges. The procedure for obtaining review of a claim of disqualification against an appellate or common pleas judge is commenced by the filing of an affidavit of disqualification with the Clerk of the Supreme Court. The Revised Code contains specific requirements governing the filing of affidavits of disqualification.

Article IV, Section 2 of the Constitution sets the size of the Court at seven -- a Chief Justice and six Justices, who are elected to six-year terms on a nonpartisan ballot. Two Justices are chosen at the general election in even-numbered years. In the year when the Chief Justice runs, voters pick three members of the Court.

A person must be an attorney with at least six years experience in the practice of law to be elected or appointed to the Supreme Court. Appointments are made by the Governor for vacancies that may occur between elections.

Date Published: Monday November 30, 2020


Supreme Court of Ohio


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