OTLA Trial Lawyer Spring 2021

15 Trial Lawyer • Spring 2021 By Kevin Brague OTLA Guardian A t the beginning of the school year, Student X was choked by Student A. Student X is a medically fragile ele- mentary boy (known to the school) and Student A is another boy in his class- room. Student X’s parents witnessed the first incident of choking and let the teacher know. Teacher affirmed the boys would be watched and separated. Student A proceeded to choke Student X a num- ber of additional times over the ensuing months. School personnel were notified of each instance or witnessed the incident of choking and affirmed the boys would be watched and separated. Ultimately, Student A’s choking compromised an implanted medical device within Student X requiring life-threatening surgery to replace the device. Parents of Student X brought suit Kevin Brague against the school district as guardians ad litem for their son and on their own behalf for the medical bills and injuries they experienced. The complaint seeks tort claim limits on behalf of Student X and parents of Student X. What is the relationship between Student X and school district, and what is the relationship between parents of X and school district? Relationships and responsibilities It is well recognized in Oregon, and other jurisdictions, a school has a special relationship with its students. See, Faz- zolari v. Portland Sch. Dist. No. 1J , 303 Ore. 1, 19 (1987); See also, C.A. v. Wil- liam S. Hart Union High Sch. Dist. , 53 Cal 4th 861, 138 Cal Rptr 3d 1, 270 P3d 699 (2012); Carabba v. Anacortes Sch. Dist. , 72 Wash 2d 939, 435 P2d 936 (1967); and Jerkins v. Anderson , 191 NJ 285, 922 A2d 1279 (2007). The special relationship is a heightened duty on the part of the school to protect the student from harm. See, Shin v. Sunriver Prepara- tory Sch., Inc. , 199 Or App 352, 367 (2005) and Piazza v. Kellim , 360 Or 58 (2016). This is “apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm,” and the “scope of th[at] obligation does not exclude precautions against risks of crime or torts merely because a third person inflicts the injury.” Fazzolari , 303 Or at 19, 20. When a parent sends a child to a public school, the child is entrusted to the school’s custody, care and supervi- sion. This requires the school not to unreasonably expose its students to a foreseeable risk of harm. Notably, this is the position of nearly a majority of other jurisdictions and U.S. District Court, Oregon. Judge Mosman of the U.S. District Court, District of Oregon held that “the Oregon Supreme Court would likely recognize a special relation- ship between a public school and a public school student.” Taissa & Ray Achcar-Winkels v. Lake Oswego Sch. Dist. , No. 3:15-cv-00385-YY, 2017 US Dist LEXIS 80404, at *11 (D Or May 25, 2017). Despite arguments from defense lawyers to the contrary, the Oregon School Boards Association agrees with this position, “OSBA notes that schools have a heightened duty to keep students safe, given their in loco parentis relation- ship with them.” Doe v. Medford Sch. Dist. 549C, 232 Or App 38, 44-45 (2009). Thus, the special relationship that exists between a public school and its students allows for the recovery of physical injury, but also for injuries without physical impact or touching. The heightened duty in the special relationship between schools and stu- dents is aligned with the elements of a premises liability claim. The students are See Education p 16 Special Relationships in Education