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School District And Employees Were Not Immune From Liability Under Government Code Section 855.6 After Student Shoots Another Student
On January 10, 2013, a Taft Union High School student Bryan O. shot a fellow student, Bowe Cleveland, in the stomach with a shotgun during their first-period science class. In March 2011, Bryan was involved in a fight with several classmates during a physical education class. Additionally, during a school field trip to Universal Studios, two chaperones on the trip overheard Bryan telling four other classmates that he thought about shooting someone at the school that picked on him. Bryan also described bringing gasoline to the school and blowing up the auditorium. Both of the chaperones prepared incident reports describing Bryan’s conversation with his classmates. Students also completed incident reports about what happened during the bus ride.
On the Monday following the field trip, the chaperone met with assistant principal Rona Angelo about what she had overheard and expressed her concern for the safety of students and staff. Angelo then initiated a threat assessment and gathered a threat assessment team to address these incident reports. As part of the threat assessment, Angelo met with the school’s psychologist Mark Shoffner. Shoffner’s role in the threat assessment was to consider the mental health information available and meet with the student to determine what the student’s intent was and whether the student understood why others might have been scared by what the student said or did.
In April 2013, Cleveland filed a personal injury complaint against the District, its superintendent, principal, and assistant principal (the District). The complaint alleged causes of action for general negligence and negligent infliction of emotional distress. The District argued that it was immune from Cleveland’s claim based on government immunity pursuant to Government Code sections 820.2 and 855.2. Section 855.2 provides that neither a public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination or to make an adequate physical or mental examination.
Cleveland argued that the District is not subject to government immunity under Section 855.2. Section 855.2 only applied to physical and mental examinations and did not extend to many of the acts and omissions of the threat assessment team, such as the failure of members to share information. The trial court found, among other things, there was a range of things not covered by the immunity that the District could have done that the jury might find breached the standard of care.
The jury found that the District’s employees are 54 percent responsible for Cleveland’s injuries and held the District vicariously liable for about $2 million based on its employees’ negligence. In August 2019, the District moved for a judgment notwithstanding the jury’s verdict, asserting that all members of the threat assessment team were shielded from liability based on Section 855.6 immunity. The trial court denied the District’s motion, and the District appealed.
The Fifth Circuit affirmed the trial court’s judgment. The Fifth Circuit concluded that Section 855.6 immunity did not cover all the District’s employees’ negligence, and substantial evidence supported the jury’s findings that the District’s failure to report certain information, such as a conversation about employees feeling afraid of the shooter and having escape plans, was a substantial factor in causing Cleveland’s injuries.
Specifically, the Fifth Circuit found that the District’s employees breached their duty of care because (1) the threat assessment was not carried out by the team collectively; (2) the school resource officer (i.e., the law enforcement officer assigned to the school) should have been a core member of the team; (3) the threat assessment team failed to communicate amongst themselves about Bryan; (4) the threat assessment team failed to adequately communicate with Bryan’s parent; (5) the threat assessment team failed to recommend counseling to Bryan’s parent as an intervention technique; and (6) the threat assessment team did not continue to collectively monitor Bryan and reassess the safety plan. These acts and omissions fell outside the immunity provided for mental examinations.
Therefore, the Fifth Circuit concluded that a jury could rationally find that the District employees’ negligence to report information and communication failures were a substantial factor in the District’s failure to prevent the shooting.
Cleveland v. Taft Union High School District (2022) 76 Cal. App. 5th 776.