Proving Premises Liability in School Cases

FEATURE

 

Olivia Johnson v. Ashley Matheison and Sean Kelly,
Superior Court of Douglas County, Civil Action File No. 15-CV-02240

By Joseph R. Neal, Jr., Neal Law, One Atlantic Center

On October 10, 2013, at Chapel Hill High School in Douglas County, Georgia, an ill-advised science experiment went awry in the hallway outside of the chemistry lab during an after-hours “AP Open House.” An eighteen-year-old high school senior, Olivia Johnson, was seriously burned and security surveillance cameras captured the incident on video. This school fire made the local CBS television news.

The chemistry teacher who was the “brainchild” behind this experiment was running late to the open house, and hurriedly retrieved a four-liter jug of methanol out of the chemical storage room and was attempting to do the “rainbow flame” color experiment with the methanol, an open flame and a couple of other chemicals in a petri dish at a table in the hallway. This experiment was intended to be a demonstration for prospective AP students interested in attending Chapel Hill high school.

Our client, Olivia, an AP chemistry student, volunteered to assist. She was instructed to stand behind the table and light the methanol after the teacher poured it into the dish. The teacher, having turned her back to the experiment, was engaged in an animated conversation with another adult and child when she abruptly turned around with the four-liter jug of methanol and carelessly poured it into the dish, causing it to gush out of the container. A flash fire explosion erupted and Olivia was terribly burned in her upper torso, including her arms, breasts, chest, and neck. Olivia was airlifted to and treated by Shriners Hospital in Ohio after being initially admitted at Grady Hospital in Atlanta. She spent three weeks in the hospital, her recovery continues today, and she has endured numerous surgeries over the last several years. Her past medicals at the time of settlement were $280,000. Olivia is a brave and special young woman, and her perseverance and positive attitude are an inspiration to everyone who knows her.

Joshua Schiffer of Schiffer Chanco & Olson originated the case. He and his partners David Olson and Douglas Chanco immediately sent spoliation letters and open records requests to the school and attempted to discuss a pre-suit settlement with the school board’s attorneys, a firm which represents 100 school districts across Georgia. As could be expected, defense counsel refused to pay anything other than nominal defense costs. Josh and David were bluntly informed by Phil Hartley, Esq., that “Official Immunity” was impossible to overcome and there was simply no case. No matter how terrible the injures or negligent the actions of the teacher, they were told, you simply could not sue a school or its employees for injuring a student. A review of case law in school injury cases seemed to largely back up defense counsel’s assertion.

Many able lawyers in the legal community consulted by Josh and David called the case a “loser” because the case law is indeed quite draconian in school tort cases. The vast majority, if not all, school tort case law on the books focuses on the “failure to supervise” students, which routinely is categorized by the trial and appellate courts as involving only “discretionary duties” and automatically results in immunity being granted, even in the most egregious damages cases. Josh, Doug and David associated me to enter the case as lead counsel after learning of my successful litigation in fire and burn cases, including a governmental immunity fire case against the City of Augusta that went all the way to the Georgia Supreme Court after a four-year battle, Vann v. Finley, 313 Ga. App. 153 (2011), cert. denied 2012 Ga Lexis 387. I knew from experience when I entered this case I was in it for the long haul due to the nature of the case law.

When we drafted the suit, despite David’s pre-suit open records request seeking same, we had not been provided the actual video footage of the fire, nor had we inspected the lab, nor seen any pictures of the chemical containers used in the experiment. With this limited information, our original complaint, which was filed in October 2015, alleged only violations of the rules of the actual experiment and the material safety data sheet for methanol. Once we obtained the actual video footage of the fire in discovery, however, we sensed there was more to this case than we were being led to believe and began to dig deeper into what went wrong.

I filed a Notice to Inspect the chemistry lab, and David, Josh and I went to the school and examined and took pictures of the chemical storage room, the lab, and the hallway where the fire occurred. We also discovered, in plain view, a row of three ring binders in the storage room containing Material Safety Data Sheets of every single chemical stored in the lab. This discovery was a “gotcha” moment, and I quickly pulled down the MSDS for Methanol and took pictures of it because the defense had previously denied in discovery that they possessed any MSDS’s for Methanol and failed to produce them. The defense attorney was visibly caught off guard and quickly explained that he did not know about those books. The inspection also revealed a giant red and yellow warning sticker on the cabinet where the Methanol was stored that referred to NFPA 30 (a fire code for flammable liquids) and the phrase “FLAMMABLE – KEEP FIRE AWAY.” Like the discovery of the video footage, the lab inspection was one of several turning points in the case that helped us win.

Around the same time, David did some internet research and found that this “rainbow flame experiment” had resulted in fires in several different schools across the country. David found one of the plaintiff’s lawyers and I gave him a call. His case involved a private school so he did not face the immunity issue that we were facing, but I decided to ask for the name of his fire experts and see whether they could give us any ideas. The first expert I called was retired and although he felt very bad for Olivia, his wife did not want him to get involved. Undeterred, I called the second expert and he was a godsend. He specialized in school lab fire cases and had actually started a non-profit called the Laboratory Safety Institute and helped me brainstorm the unusual immunity issue in our case (which he was not really familiar with as most cases he handled were at private schools) and told me that NFPA 45 applied to school labs. I got him to send me a copy of it and then recalled seeing the NFPA 30 sticker on the flammable liquids cabinet at the lab inspection. At this point, a light bulb went off in my head and I remembered I had been down this road before, that of the fire codes, in the Vann v. Finley case, supra. I then spent many hours researching NFPA 30 and 45, the International Fire Code, the Douglas County Code of Ordinances, the Georgia State Fire Code Regulations and the Title 25 and Title 8 enabling statutes. Through intense and detailed study of this “arsenal of law,” we came up with perhaps a dozen or so fire code violations that we believed the teacher and principal committed.

At this point, we were ready to depose the School Board Safety Coordinator, who admitted the fire codes applied to the school and employees and that they were mandatory. I noticed him to produce all of his fire codes and policies at his deposition and while he did not produce fire codes, he did produce a fire prevention policy that the defendants failed to produce in discovery. After this deposition, we decided to file a motion to compel, as the defendants had consistently failed to produce germane evidence that we were finding on our own through the lab inspection and a deposition of their employee. We moved for sanctions for the destruction of the jug of methanol and brought up their failure to produce the MSDS for Methanol which we found in the lab and I told the judge about the deposition admissions of the Safety Coordinator. I also informed the judge at the outset of the sanctions hearing that this case was different from all other school cases in the law books because this case involved a failure to follow mandatory, ministerial fire codes which were law as they had been adopted by both the State of Georgia and Douglas County. The judge, the Hon. William McClain, a former prosecutor, was very familiar with the fire codes from prosecuting arson cases and stated he was “leaning the Plaintiff’s way.” At that point, I offered to drop our motion if the defense would agree to substitute an exemplar jug of Methanol of the same type size, quantity, and manufacturer as the other chemicals in the storage room. This was agreed to very quickly by the defense to avoid the judge ruling on our Motion to Compel.

When we arrived at the next set of depositions, we saw sitting on the conference table a four-liter jug of Methanol that had a very visible warning label and fire symbol. The exemplar jug we were able to get as evidence through our Motion to Compel was another turning point in the case. We then subpoenaed the Douglas County Fire Marshall, the fire code official, for a deposition and noticed him to produce all fire codes in his office. When we arrived, we were pleasantly greeted by a rolling cart full of books, including all the fire codes we needed to prove our case. I have taken hundreds of depositions in my career, but this deposition was, without a doubt, the best and most satisfying deposition I have ever taken. With David’s assistance, I got the Fire Marshall to admit the teacher and principal violated at least ten different sections of the fire code and to testify they were mandatory laws that they had no discretion to ignore. After this deposition was over, David and I told the defense attorney as we walked outside to our cars to leave, “y’all need to settle this case.” He agreed to talk to his partner and clients.

After the Fire Marshall’s deposition, I drafted a tightly worded, detailed and comprehensive amended complaint alleging numerous code violations with citations to authorities, all of which were already proven by the testimony of the Douglas County Fire Marshall and Safety Coordinator. Then we took the video depositions of the defendants, who, as could be expected, were remorseless, well coached, and admitted no wrongdoing. The principal said “I don’t know” 212 times in 124 pages of deposition. The teacher repeatedly stated she was not subject to the fire codes and other fire policies because she “had not seen them,” because “nobody told me about them,” and because she “had the judgment to decide” what rules to follow. These depositions meant that when we survived summary judgment, which I was confident we would, the defendants would be terrible witnesses at trial on cross-examination because I had them on video acting like callous, incompetent, and indifferent government employees.

Shortly after the video depositions of the Defendants, it became clear this case needed to settle, and the school’s insurer, the Georgia School Board Risk Management Fund, which had totally ignored our pre-suit demands, agreed to mediate the case prior to any dispositive motions being filed. On Monday, April 25th, 2016 we conducted a day long mediation with Tommy Greer of Carrollton, Georgia. An interesting thing happened at the mediation that Tommy Greer said he had never seen happen in 30 years of doing mediations. Negotiations began to bog down a few hours into the mediation after the defense cited a case that stood for the proposition that alleged violations of statutes does not necessarily equate to violations of ministerial duties. Within thirty minutes of being handed this case I was checking my email and saw a case that recently came out of the Court of Appeals, Boatright v. Copeland,A15A2043, (Ga. App., 2016), that stated the exact opposite and we quickly printed it out and sent it to defense counsel, who, as luck would have it, was on the losing end in that case and knew all about the opinion but had withheld it while citing the contrary case. At that point, the gig was up, and negotiations resumed. Tommy Greer helped us facilitate a settlement of all claims for $1,500,000, which exceeded the Georgia school board risk management’s policy limits. The balance of the sum was paid by two other insurance companies which insured the professional associations for the teacher and the principal, but only after a declaratory judgment action in federal court was filed and we convinced the insurance companies to stop fighting amongst themselves virtually the day before the mediation by showing their attorneys the photographs of Olivia’s burns, the amended complaint, and the depositions of the fire marshal and the safety coordinator for the county.

From our research, our case appears to be the largest settlement (or verdict) ever paid in the history of Georgia in a case against a teacher or principal with an immunity defense. Only three other cases have prevailed against a teacher or principal on the defense of immunity, Boatright, (2016) supra, McDowell v. Smith, 285 Ga. 592 (2009), and Cotton v. Smith, 310 Ga. App. 428 (2011) and from talking with plaintiffs counsel in two of those cases (Boatright is apparently still pending), we believe our case concluded with the highest amount ever paid in a school immunity case.

This was truly a team effort. David, Josh, Doug and I are all very grateful that we could achieve justice for Olivia in a case many said could not be won because of the case law. We also want to thank our local counsel, Cade Parian, Esq., who is a Douglas County native and was familiar with our judge and mediator and who attended the sanctions hearing in front of Judge McClain. We hope our case inspires other lawyers to try to find creative ways to make liability become a reality instead of a fantasy in school tort cases. ●

AUTHOR BIO
Joseph Neal is the founder of Neal Law with offices in Atlanta and Augusta. His practice focuses primarily on serious road wrecks, fire cases, medical malpractice, premises liability, defective products, and environmental torts. He can be reached at joenealjr@neal-law.com.

 

PHOTO CREDIT
Gino Santa Maria/Shutterstock.com

Leave a Reply

Your email address will not be published. Required fields are marked *

*

This site uses Akismet to reduce spam. Learn how your comment data is processed.