Schools liable in suicides? Court to hear case

By all accounts eighth-grader Stephen Patton was cheerful and well-liked by most of his classmates at Floyd County's Allen Central Middle School.

But a few of them, his family says they discovered, repeatedly abused, taunted and bullied the 13-year-old gentle giant, who stood 6 foot 3, weighed 196 pounds and had a stutter.

On Nov. 27, 2007, Stephen placed a gun to his head and took his own life.

Now on Wednesday, eight years later, the Kentucky Supreme Court will hear arguments for the first time on whether schools can be held liable for failing to stem bullying that causes a student's suicide.

Stephen's mother, Sheila Patton, sued on his behalf, saying that four teachers, two school superintendents and principal Davida Bickford knew he had been bullied daily but did nothing to stop it.

"Stephen would not want another student to go through what he suffered," Patton said, explaining why she brought the lawsuit. "We cannot let our son die in vain."

The defendants say Stephen's death was heart-wrenching but deny they knew about the hazing. Even if they had, they say, it would have been impossible for them to foresee that Stephen would kill himself, when his death took his own mother and friends by surprise.

The teachers and administrators have prevailed in two lower courts, but the Supreme Court will decide whether to reinstate the lawsuit in a case that could have major consequences, given the prevalence of bullying and how often young people consider suicide.

About 16 percent of students in grades nine through 12 say they thought about taking their own lives in the prior 12 months, according to the Centers for Disease Control and Prevention, while other studies have found that victims of bullying at school are two to nine times more likely to consider suicide than non-victims.

Wayne Young, executive director of the Kentucky Association of School Administrators, which represents 3,000 educators, says it would be frighteningly unfair to hold them accountable for something so unpredictable.

"How in the world will we be able to talk young people into becoming teachers or principals if they are held responsible for a student's suicide?" he asked.

Brad Hughes, spokesman for the Kentucky School Boards Association, said schools try to prevent bullying because it makes it harder for students to learn, but he said it would be unfair to hold them accountable for something they didn't know about or that happens away from school.

Michael killed himself at home, in his own bedroom.

Patton's suit is thought to be the first of its kind in Kentucky, but across the nation there has been a flood of similar complaints filed by grieving parents. In the past year alone, according to press accounts, suits have been filed in Chicago, East St. Louis, Ill., Las Vegas and Snohomish, Wash.

But while such litigation continues unabated, teachers and school districts have won most of the cases, said Perry Zirkel, a professor of law and education at Lehigh University, who puts the odds of parents winning at 1 in 10.

He said parents who lose a child to suicide are empathetic plaintiffs but there are competing interests, including the burdens to teachers and taxpayers, who ultimately pay the tab.

Courts have been reluctant to hold teachers or schools liable for what is seen as an unpredictable tragedy, absent proof that school employees had direct knowledge a student was suicidal and did nothing, or, as one scholar put it, took a "cruel stance toward the plight of a severely bullied student."

Patton and her lawyer, Vanessa Cantley, say that is what happened to Stephen.

In her brief to the Supreme Court, Cantley cites an affidavit from former student Phyllis Smith, who says she watched in the hall as students made fun of Stephen's stutter in front of teachers, who did nothing.

Cantley says another student, Zack Shepherd, told how students bullied Stephen at lunch, taking items out of his lunch box and scattering the rest. On two separate occasions, according to the brief, Zack, Stephen and a third boy reported Stephen's bullying to Bickford, the principal, but Zack said she "blew us off."

The brief says that teachers allowed other students to be bullied with impunity, including Phyllis, who had students put gum and barbeque sauce in her hair. While teacher Patricia Handshoe, one of the defendants, picked it out, she did nothing to punish the girls who put it there, according to the brief.

Cantley says the school's hallway cameras might have documented incidents of bullying but Bickford testified that the secretaries in charge of monitoring the cameras were never trained in how to recognize it.

The brief says if the case goes to trial, students will testify that Stephen made statements regarding his impending suicide that a reasonable juror could attribute to bullying.

But attorneys for the teachers and administrators say there were no signs Stephen was suicidal.

They contend he suffered from a variety of other maladies, including migraine headaches since age 6, that could have prompted him to end his life.

In fact, he once said to another student that he would rather die than have another migraine, the teachers' lawyers, Neal Smith and Todd Kennedy, say in their brief.

They note that the only teacher who even suspected Stephen might have been bullied one day asked him about it and he assured the teacher that he and the other students were "having fun."

Bickford testified in a deposition that she never saw Stephen bullied and nobody ever told her that he was.

The defendants also note that Jon Akers, director of the Kentucky Center for School Safety, testified the school had an effective anti-bullying policy in place and followed it.

That program included educating teachers and students about bullying and offering a "bullying box" that allowed students to make anonymous reports.

Floyd Circuit Court Judge John David Caudill threw out Patton's suit, in part because he found the defendants enjoyed what is known as qualified immunity.

He also said that the courts generally don't allow defendants to be held liable for a person's suicide because it is an intervening act that they couldn't reasonably be expected to foresee.

There are exceptions, he said, such as if a jailer knows an inmate is suicidal and doesn't take reasonable steps to prevent him from killing himself. However, Caudill said, "The record is clear that Stephen was not known to be suicidal."

The Court of Appeals held that the defendants were not immune from a suit but it found they couldn't be liable for a suicide, especially one that didn't occur at school.

Cantley concedes that not every case in which a student is bullied and ultimately commits suicide should result in a viable lawsuit. But she asks the Supreme Court to find that suicide is not a total bar against recovery of damages.

She said in an email that if the court sends that case back for a jury trial and the estate prevails, his parents will use any proceeds to start a foundation in Stephen's memory to fund anti-bullying education and training.

"Every day, teachers and school administrators throughout this state teach students that if rules are broken, consequences follow," Cantley said. Here "rules were broken. Stephen Patton died. But there have been no consequences for those who broke the rules."

Reporter Andrew Wolfson can be reached at (502) 582-7189

SUICIDE AND CHILDREN

A nationally representative sample of students in grades 9-12 found that:

•15.8 percent had seriously considered attempting suicide during the 12 previous months

•12.8 percent reported that they made a suicide plan

•7.8 percent reported that they had attempted suicide during the 12 previous months

•2.4 percent reported that they had made a suicide attempt that resulted in an injury, poisoning or an overdose that required medical attention

Source: U.S. Centers for Disease Control and Prevention, 2011 study

THE FIRST CASE

The first suit in which a school district was found liable for a student's suicide also involved a 13-year-old.

After Shawn Wyke tried to hang himself in a restroom of his junior high school in Polk County, Fla., in October 1989, the dean of students called him into his office, read Scripture to him and took no further action. He didn't tell Shawn's parents or inform other school officials.

Shawn tried to kill himself again on school grounds later the same day, then hanged himself in his back yard a couple of days later.

A court found the school district could be found liable for failing to notify Shawn's parents, saying "a prudent person would not have needed a crystal ball to see that Shawn needed help and that if he didn't get it soon, he might attempt suicide again." The court also said "the risk of a child's death substantially outweighs the burden of making a phone call."

A jury returned a $500,000 verdict, although the school district was found responsible for only a third of it.