Erick Ortiz was an autistic high school student in the Los Angeles Unified School District (LAUSD) who attended an end-of-year party at a park. In accordance with Erick’s Individualized Education Plan (IEP), LAUSD provided an aide to supervise him throughout the day. During the party, Erick told school aide Lopez that he was going to the park’s swimming pool, which was monitored by three lifeguards. Lopez did not enter the pool area but watched Erick from a designated observation area as required by the pool rules. At some point, Lopez saw Erick exit the pool and enter the locker room. Lopez then left the observation area to wait for Erick to exit the locker room. Unknown to Lopez, Erick did not change in the locker room and instead returned to the pool. Lopez shortly thereafter began looking for Erick. When Lopez checked the pool, he saw lifeguards attempt to resuscitate Erick, who had drowned.
Erick’s parents sued LAUSD, the aide, and several school employees for negligence and wrongful death, and a federal section 1983 claim for deprivation of familial relationship. The trial court granted judgment in favor of the defendants on all claims. Erick’s parents appealed.
To recover damages under a section 1983 claim, a plaintiff must establish that the defendant deprived him of a constitutional right while “acting under color of state law.” A section 1983 claim can arise when the state affirmatively places a plaintiff in danger by acting with deliberate indifference to a known or obvious danger. A defendant who acts with deliberate indifference recognizes the unreasonable risks, ignores those risks, and intentionally exposes the plaintiff to such risks without regard to consequences to the plaintiff. The court evaluates whether the defendant acted under deliberate indifference under a subjective test.
The Ninth Circuit found there was no factual dispute that the aide, Lopez, was unaware of any immediate danger to Erick because he thought Erick was in the locker room. Additionally, even if Lopez did not supervise Erick as closely as he could have, there were three lifeguards at the pool who were also responsible for student safety. The Ninth Circuit also found that Lopez had no actual knowledge of the fact that Erick was going to drown because Lopez thought Erick was still in the locker room.
Additionally, the Ninth Circuit found that no jury would find that Lopez was deliberately indifferent to Erick’s safety because he lost track of Erick earlier in the day. Additionally, because there were other lifeguards at the pool, no jury would conclude that Lopez intentionally exposed Erick to unreasonable risk.
The Ninth Circuit also rejected the parents’ argument that Lopez allowed Erick to enter a more dangerous situation. There was undisputed evidence that Erick was never left completely without protection – Lopez monitored Erick when he was at the pool, and three other lifeguards also monitored the pool. Therefore, the Ninth Circuit upheld the trial court’s judgment in favor of the defendants on the federal section 1983 claim.
In an accompanying opinion, the Ninth Circuit also addressed Erick’s parents’ argument that Education Code section 35330 does not apply because the Individuals with Disabilities Education Act (IDEA) and Education Code section 44808 are exceptions to section 35330. Section 35330 immunizes schools from all claims against schools during or by reason of a field trip or excursion. Section 44808 allows liability against a school that has provided transportation to a student from school premises, has undertaken a school-sponsored activity off the premises of the school, and has specifically assumed responsibility or liability, or and has failed to exercise reasonable care under the circumstances.
The Ninth Circuit rejected the parents’ argument that IDEA provides for an exception to state liability law. IDEA allows students to file a suit in court under federal law against the state for violations of the statute. However, IDEA does not require states to permit state law claims for violating its obligations under federal law.
The Ninth Circuit also rejected the parents’ argument that section 44808 provides an exception to section 35330. The Ninth Circuit reasoned that section 44808 does not preclude immunity when a school already has statutory immunity under section 35330. The parents did not dispute that the end-of-year party was a field trip and therefore, the school district is immune under section 35330.
Ultimately, the Ninth Circuit upheld the trial court’s decision that LAUSD was immune from liability pursuant to section 35330.
Herrera v. Los Angeles Unified School Dist. (9th Cir. 2021) ____ F.4th ____ [2021 WL 5626373]; Herrera v. Los Angeles Unified School Dist. (9th Cir. 2021) ____ F.4th ____ [2021 WL 5647960], (unpublished).