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Lawyers are learning about schools. While caps on damages and immunity laws in many states make it difficult or unfeasible to bring lawsuits against schools and school districts, attorneys are finding creative new ways to get around the roadblocks. For example, when handicapped children have been injured or killed in schools or on school buses, attorneys have sued, claiming violation of the Americans with Disabilities Act. Others have gone to state legislatures to get around limits on jury awards. In a widely watched case involving the Massachusetts Institute of Technology, the parents of a student who killed herself are suing for alleged violation of expressed or implied contracts with the family to provide medical care and to act in loco parentis. And, in a first, a school district has been successfully sued for allowing students to harass a teacher sexually. Jurors increasingly “want schools to take charge and have policies that comply with the law,” says Gloria Allred of Los Angeles’ Allred, Maroko & Goldberg, who won the harassment verdict of $4.35 million. Still, it’s very difficult to win against schools, says Norman Tucker, head of the Michigan Trial Lawyers Association and an attorney with Sommers, Schwartz, Silver & Schwartz in Southfield, Mich. “You have to prove gross negligence, willful and wanton misconduct,” he says. “There’s a very high standard.” There are no hard national statistics available on suits against schools, says Julie Underwood, general counsel and associate executive director of the National School Boards Association, which represents 14,000 local boards. On the other side, Carlton Carl, a spokesman for the American Trial Lawyers Association, says he is “not aware of any increase or trend” in suits against schools. But Underwood concedes that in the past five years there has been more litigation over special education for students with disabilities. Accidents in schools are the next most common type of case, she says, followed by an array of litigation involving federal statutes, collective bargaining and constitutional issues. The best statistics available on school suits were compiled by the New York Jury Verdict Reporter and reported in March in the New York Law Journal, both sister publications of The National Law Journal. The statistics compared jury verdicts involving schools in New York state in 2001 and 1997. AWARD SIZE INCREASING The number of school accident verdicts in 2001 of $1 million or more was six-four against the city of New York. Only two verdicts in 1997 were for more than $1 million, and both were reduced significantly post-trial. The highest verdicts for 2001 involved the same type of claims — negligence, dangerous conditions — as the biggest verdicts in 1997. But the size of the awards increased significantly. A teacher who slipped and fell in a Bronx school cafeteria in 1997 got $297,000 from a jury. In a similar Bronx case in 2001, a teacher was awarded $2.6 million. Fay Leoussis, chief of the New York City corporation counsel’s tort division, sees no new trend in school verdicts. Although there has has always been a “general consensus that schools are more liable because there are children involved,” juries in general across the country are giving higher awards, she says. But Michael Madonna of Trolman, Glaser & Lichtman in New York City says he believes verdicts in school cases are rising specifically because they involve schools. Madonna, who has handled numerous school accident and death cases, concedes that it is difficult to prove liability against schools because often there are several people who could be held responsible for injuries — from teachers to janitors to administrators. But he believes juries are handing out higher verdicts because “they get outraged” when they hear what is going on in schools. “These are the people charged with caring for our kids.” Other attorneys agree that they are seeing larger jury verdicts and settlements. Jurors seem to be more aware of problems in schools since there is “more reporting now and greater public sensitivity,” says Lance Block, past president of the Florida Trial Lawyers Association and an attorney with Searcy Denny Scarola Barnhart & Shipley in West Palm Beach, Fla. Plus, he added, “verdicts tend to keep up with inflation. “Juries and society value our children,” says Block, who has handled numerous suits against schools. “Schools are paid by parents to stand in for parents. All the law calls for is reasonable care. We expect schools to protect kids.” Sexual harassment suits involving schools and Title IX is one area that is growing, says Andrea Gunn, an attorney with the Texas Civil Rights Project. Cases are now coming out of high schools as well as colleges, with attorneys arguing that schools that condone harassment deny victims the equal access to education that Title IX is designed to protect, Gunn says. One of the most unusual sexual harassment cases involving a school district ended in March in Los Angeles County Superior Court, where Allred won millions for her client, former teacher Janis Adams. The plaintiff claimed she was harassed by a student-run sexually explicit underground newspaper and that the school district had failed to stop its publication. Adams v. Los Angeles County Unified School District, No. BC 235 667. Adams, a former actress, said the paper ran an article saying she had been a porn star, and that the harassment, including a death threat, escalated when she tried to have the students responsible expelled. She eventually went on medical leave. After more than three hours of deliberations, the jury on March 8 awarded her $1.1 million in lost earnings and $3.25 million for emotional distress. The school district said it would appeal. “Jurors want schools to be run so kids can learn and teachers can teach,” says Allred, who has represented numerous clients against schools. “The jury felt the school district wasn’t following its own rules and policies. My client wasn’t protected.” Many states have caps on the size of judgments against schools, or provide them sovereign immunity from lawsuits. But often school districts and their insurance companies, even in states with caps, will fight lawsuits aggressively, dragging them out and refusing settlements, plaintiffs’ lawyers assert. Adam Doner of Gordon & Doner in West Palm Beach won a $1.6 million jury verdict in February for the parents of a 14-year-old who was fatally shot by a classmate outside their school in 1997. FLORIDA LIMIT In Florida, however, each parent is limited by law to no more than $100,000. Plus the school district is appealing the case. If his case survives the appeal, Doner plans to go to the Florida Legislature to seek more money beyond the cap for his clients. Kamel v. Palm Beach County School District, No. CL98 7572AG (Palm Beach Co., Fla., Cir. Ct.). Because of the nature of the crime — one of the first shooting cases at a school in the country — Doner felt compelled to take the case. “But I’ve already spent $80,000 out of my own pocket,” he says. “Lots of lawyers can’t afford to take these cases against schools. It’s almost pro bono work.” To win against schools, lawyers say, the case needs to be extremely solid, bolstered by ranks of expert witnesses. Also, unusual strategies may be necessary. In the suit against MIT, David A. DeLuca of Murphy, Hesse, Tooney and Lehane in Quincy, Mass., is representing the parents of Elizabeth Shin, a student with a history of mental problems who committed suicide on campus in April 2000. The family is seeking almost $28 million in damages. Massachusetts, however, limits tort claims against charitable and educational institutions to $20,000. Rather than sue MIT directly for negligence and malpractice on the part of counselors and doctors, DeLuca is bringing nontort claims for breach of contract against the school, arguing that Elizabeth did not get the care her parents had paid for. The suit also charges five MIT doctors with malpractice individually. The suit, filed last January, is in the discovery phase. Shin v. MIT, No. 02-0403 (Middlesex Co., Mass., Super. Ct.). ‘A SPECIAL DUTY’ “Did the parents get what they expected from MIT?” asks DeLuca. “Schools have a special duty when they have raised the expectations of students and families for the best care and education.” James Collins, head of the Illinois Trial Lawyers Association, in a state that has no caps, says verdicts against schools remain “few and far between. The standards are different when you’re suing a school. It’s hard to prove intent.” Leoussis says that in New York City there have been more aggressive efforts to settle claims against schools rather than to go to trial because of the heavy cost of a court battle. “Settlements are really the wave of the future,” she told the New York Law Journal. But sometimes something besides establishing blame and collecting money can come out of a suit against a school. Bruce Nelson, a solo practitioner in Spokane, Wash., was preparing a suit against a local school district on behalf of the parents of a 9-year-old who died of an allergic reaction to peanuts while on a school trip in May 2001. This April, the case was settled out of court, reportedly for less than $1 million. The parties signed a confidentiality agreement. “But compensation was just half the goal,” Nelson asserts. One of the parents was named to a school task force to study allergy problems and come up with policies to avoid such deadly situations in the future. The school district also contributed funds to a food allergy group. “What we wanted to do,” Nelson says, “is make a change.”

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