Finding a genuine issue of material fact as to whether Richmond parents’ complied with the Indiana Tort Claims Act notice provision when filing a lawsuit after their severely disabled daughter died at school, the Indiana Court of Appeals ordered that issue to go before a jury.
Michael and Denita Lyons’ 17-year-old daughter Megan attended Richmond High School. She had Down syndrome and was severely mentally disabled, according to court records. She required around-the-clock care and someone to cut her food up. She choked on a sandwich while at school on Jan. 2, 2009, was deprived of oxygen for 15 to 20 minutes, and died two days later.
The Lyonses sued Richmond Community School Corporation under the ITCA and 42 U.S.C. Section 1983, alleging the school’s acts or omissions caused their daughter’s death. The trial court granted summary judgment to RCSC on the issues of compliance with ITCA’s notice provision and contributory negligence, as well as on the Section 1983 claims. The parents didn’t file their notice of tort claim until Jan. 11, 2010, and their lawsuit until June 8, 2010. They claim that they had no knowledge of the school’s negligence until a cafeteria worker contacted them in October 2009 and said “things were not done properly.”
“The proper question, therefore, is: in the exercise of ordinary diligence, could the Lyonses have learned of RCSC’s alleged acts or omissions before July 15, 2009, which was 180 days before the Lyonses filed notice of their claims on January 11, 2010? This question is not resolved by the designated evidence, and therefore, it remains a genuine issue of material fact for the jury’s determination,” Judge Cale Bradford wrote in Michael E. Lyons, Denita L. Lyons, individually and as Co-Personal Representatives of the Estate of Megan Renee Lyons, Deceased v. Richmond Community School Corp. d/b/a Richmond High School; Joe Spicer; et al., 89A04-1204-PL-159.
The judges found many of the Lyonses’ other claims on appeal failed, including that the trial court erred in quashing their third-party discovery requests against RCSC’s insurance company and in granting RCSC summary judgment on the issue of contributory negligence.
“I believe many of the things that raise a question of fact as to when the Lyonses should have discovered their cause of action also raise a question of fact as to whether RCSC was fraudulently concealing material facts concerning the Lyonses’ cause of action,” Chief Judge Margret Robb wrote in a separate opinion.
She also dissented from the majority’s decision affirming the grant of summary judgment on the Lyonses’ Section 1983 claims regarding the school corporation’s liability.