COA: IPS not immune from negligence claim involving 1st grader

Finding that Indianapolis Public Schools is not immune from liability under the Indiana Tort Claims Act, the Court of Appeals of Indiana has revived a lawsuit brought by the parents of a first grader who was prevented from boarding his school bus and was forced to walk home.

Casey Hopkins and Terry Yarbrough filed a negligence claim when their 7-year-old son was mistakenly told to walk home at the end of his second day in first grade at Ralph Waldo Emerson School 58.

The youngster had never walked home, according to court documents, and was unsure where to go. He walked more than a mile in the wrong direction, was approached by a homeless man, chased by dogs and crossed a major thoroughfare alone at rush hour. Eventually a stranger found him, called the school and the police then messaged his mother on Facebook.

In Marion Superior Court, Indianapolis Public Schools successfully argued for summary judgment. The school asserted as a governmental entity, it was immune from liability under the Indiana Tort Claims Act.

However, the Court of Appeals reversed in Casey Hopkins and Terry Yarbrough, as Parents and Next Friends of DeShawn Yarbrough v. Indianapolis Public Schools d/b/a Ralph Waldo Emerson School 58, 21A-CT-1709

On appeal, the parents argued the trial court erred in concluding their alleged loss arose from the school’s failure to enforce school policy. The school countered that its general dismissal procedures satisfy the meaning of a policy as contemplated by the Indiana Code § 34-13-3-3(8)(B), but the appellate panel disagreed, pointing to Moore v. Hamilton Southeastern School District, No. 1:11-CV-01548-SEB, 2013 WL 4607228 (S.D. Ind. Aug. 29, 2013).

“We think that the same reasoning applies here and that a school may not claim immunity when sued regarding its own compliance, or failure to comply, with laws and regulations or a school policy,” Judge Terry Crone wrote for the court. “Parents do not allege that the School harmed DeShawn by failing to compel his obedience to its dismissal procedures, but rather that the school itself failed to properly follow the procedures that were meant to provide for their son’s safety and well-being. The School’s attempt to recast the Parents’ negligence claim as one involving the enforcement of a school policy ‘as to how to facilitate student transportation upon dismissal’ is unpersuasive.”

The appellate court also found the school’s argument that it is entitled to immunity under I.C. 34-13-3-3(10) uncompelling. This provision of the ITCA grants immunity from an “act or omission of anyone other than the governmental entity or the governmental entity’s employee.”

Here, the school asserted the parents’ negligence claim is based on the acts of a teacher who mistakenly removed the boy for the bus and told him to walk home. But the Court of Appeals ruled the claim failed because there was conflicting evidence as to which person or persons were ultimately responsible for the misdirection.

The case was remanded for further proceedings.

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