Suing a School District After a Tragedy: Who Is Immune and Who Isn't (Parmertor v. Chardon)

Published March 8, 2016 · Ohio Appeals Courts

On February 27, 2012, a student waiting for a bus transfer walked into the Chardon High School cafeteria in Geauga County with a .22-caliber handgun and fired ten rounds. Three students died. One was paralyzed. Their families sued the school district, its board members, its administrators and the officials of the alternative school the shooter attended, alleging that the shooter was a known, mentally unstable, violent student and that the adults in charge had been warned and did nothing.

On February 29, 2016, the Eleventh District Court of Appeals issued its decision in Parmertor v. Chardon Local Schools, 2016-Ohio-761. The ruling is a clear map of Ohio's government-immunity law as it applies to schools: the district itself is immune, but the individual administrators and employees are not, at least not yet. Every parent whose child is hurt on school property should understand why.

The three-step immunity analysis

Ohio's Political Subdivision Tort Liability Act, R.C. Chapter 2744, protects cities, counties, townships and school districts from most lawsuits. The analysis has three steps. First, the political subdivision is presumed immune for anything connected to a governmental function, and operating a public school is one. Second, the injured person must fit the claim into one of the five exceptions in R.C. 2744.02(B). Third, if an exception applies, the subdivision can try to restore its immunity through the defenses in R.C. 2744.03. I walked through this framework in an earlier post about a city pool injury.

The Chardon families relied on the exception in R.C. 2744.02(B)(4), which makes a subdivision liable for injury "caused by the negligence of their employees" that occurs in or on the grounds of a government building and is "due to physical defects within or on the grounds of" that building.

Why the district won: a missing safeguard is not a "physical defect"

The families' theory was that the cafeteria and grounds were physically defective because they lacked the security features that would have deterred or stopped the attack. The court rejected it. Following an Eighth District case involving a murder at a public-housing complex, it defined a physical defect as a perceivable imperfection that diminishes the worth or utility of the building or grounds. The absence of some additional security measure, the court said, is not an imperfection in the property. Courts have consistently held that premises are not defective just because improvements would have made them safer.

The court also noted that the injuries were caused by the deliberate acts of the gunman, and that nothing in the complaint alleged the district had any unreasonable policy about weapons on school grounds. Because no (B)(4) exception applied, the district, the high school and the board of education kept their immunity.

The individual school-board members were dismissed too, but for a different reason. The complaint alleged they were acting within the scope of their duties as board members and did not describe any personal action by any of them. Under the Supreme Court's decision in Lambert v. Clancy, an elected official sued in his or her official capacity gets the same immunity as the subdivision. Captioning a lawsuit against someone "individually" does not change what the allegations actually say.

Why the administrators and employees did not win: reckless conduct is pleaded generally

The superintendent, principal, assistant principals, operations director and the alternative-school directors asked the court to dismiss the claims against them as well. The court refused, and this is the part of the decision that matters most for families.

Employees of a political subdivision have their own immunity under R.C. 2744.03(A)(6), but they lose it under division (A)(6)(b) when their acts or omissions were "with malicious purpose, in bad faith, or in a wanton or reckless manner." The complaint alleged that the administrators had been warned of the need for additional security, knew the shooter was mentally unstable and at high risk of violence, and knowingly failed to act. The employees argued that the families had to plead specific facts about what each individual knew and did.

The court disagreed. Civ.R. 9(B) provides that malice, intent, knowledge and "other condition of mind of a person may be averred generally." The families did not have to plead each administrator's mental state in detail to survive a motion on the pleadings. The court candidly observed that it would be premature to dismiss the allegations at this stage; the employees remain free to seek summary judgment later if discovery does not support the claims.

The court also made an important structural point. The employees argued that because the district was immune, claims against them were "redundant." The court rejected that: the statute separately provides that an employee loses immunity for reckless conduct, and it "contemplates that an employee can act with a malicious purpose, in bad faith, in a wanton or reckless manner, while still acting within the course and scope of employment." In other words, the district's immunity does not shield the individuals who work for it.

What "reckless" means in this context

Recklessness is a high bar, well above ordinary negligence. The court defined it as a perverse disregard of a known risk, where the actor is conscious that the conduct will probably result in injury. Wanton misconduct is the failure to exercise any care at all when there is a great probability of harm. I explained how the Supreme Court has applied these standards to emergency responders in this post on the Riffle v. Akron decision.

Proving that a school administrator acted recklessly requires evidence of what they actually knew: prior threats, prior violent incidents, warnings from teachers, parents or other students, and a documented decision to do nothing. That evidence lives in school files, emails, disciplinary records and the memories of staff. It must be preserved and obtained quickly.

What the decision does and does not decide

Parmertor was decided on the pleadings, before any discovery. It holds only that the claims against the individual administrators and employees were sufficiently pleaded to proceed. Whether those claims are ultimately proven is a question for the trial court and, potentially, a jury. I will not speculate about how that will turn out.

What this means for you

If your child was seriously injured or killed on school property, whether by violence, a bus crash, an athletic injury or a hazard on the grounds, the immunity rules are the first obstacle, and they are designed to be hard. Parmertor confirms two things. A claim based on inadequate security alone will not get past the district's immunity. But a claim against the individuals who knew of a specific danger and recklessly ignored it can survive, and those individuals are typically covered by the district's liability insurance.

Our claims against the government practice handles cases against school districts, cities and counties throughout Montgomery, Greene, Warren and Miami Counties. For families who have lost a child, our wrongful death practice works through both the immunity analysis and the separate rules governing who may recover.