Update: On November 10, 2020 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

On July 8, 2020, the Supreme Court of Ohio will hear oral argument in A.J.R., et al. v. Board of Education of Toledo City School District, et al., 2019-1355. At issue in this case is whether the recklessness exception to qualified immunity is satisfied when educators are given notice of teasing before a student is injured by another student in the presence of an educator.

Case Background

A.R. started kindergarten at DeVeaux Elementary School in the fall of 2015. She was an early entrant kindergartener and was only four years old at the time. A.R.’s family allege that she was continually bullied by a fellow student, S., who made fun of A.R. for being a “baby.” A.R. and S. were both in Amanda Lute’s classroom, although Lute was on leave until November, 2015, and the classroom was initially taught by a substitute.

A.R.’s mother discussed the bullying with the substitute teacher in the fall, and when the bullying continued, A.R.’s father called assistant principal Cynthia Skaff in October, 2015 to report the bullying. A.R.’s father threatened to remove A.R. from school if the bullying continued, and Skaff reassured him that A.R. would not be subject to bullying anymore. The family also maintained that they reported the ongoing bullying at least four times to Lute, Skaff, and the principal Ralph Schade.

On March 3, 2016, A.R. and S. were sitting in Lute’s classroom, and S. struck A.R. in the face with a sharpened pencil. A.R. sustained a puncture wound and a scrape on her cheek, but she did not require medical treatment. Lute did not observe the incident, nor did she hear any screaming or crying. No students reported the incident to her.

A.R.’s parents removed her from the school and filed a complaint against Lute, Skaff, and Schade (“the educators”) and the Board of Education of Toledo City School District, alleging a number of counts including recklessness and “reckless negligence.” Lucas County Court of Common Pleas Judge Linda Jennings granted judgment on the pleadings as to all claims and all defendants except for the recklessness claims against the educators.   

In March 2017, A.R.’s parents filed an amended complaint alleging a single count of recklessness or reckless negligence against the educators. The educators moved for summary judgment, arguing that they were immune from the recklessness claim based on the immunity provided by  R.C. 2744.03(A)(6), that A.R. and her parents failed to produce sufficient evidence that A.R.’s injuries were caused by S., and that A.R. and her parents failed to present evidence supporting their recklessness claim. Judge Jennings granted the motion for summary judgment, finding that the educators were immune because A.R. and her parents failed to demonstrate an issue of fact as to whether the educators disregarded a “known or obvious risk of physical harm to A.R.” A.R. and her parents appealed.

The Appeal

In a 2-1 opinion authored by Judge  Donna J. Carr, joined in judgment only by Judge Jennifer L. Hensal, the Sixth District* held that the trial court erred in granting the motion for summary judgment, finding a genuine issue of material fact as to whether the educators’ conduct was reckless.

Judge Hensal would find that summary judgment should not have been granted because A.R. and her parents set forth sufficient facts to rebut the presumption of immunity under R.C. 2744.03(A)(6).

Judge Schafer dissented.  She would find that the three educators were statutorily immune because A.R. and her parents failed adequately to allege reckless conduct on the part of any of the three employees.

*Judges Carr, Hensal, and Schafer sat by assignment from the 9th District.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Kennedy, French, Fischer, Donnelly, and Stewart.

No: Justice DeWine.

Key Statutes and Precedent

R.C. 2744.03(A)(3)(“In a civil action brought against . . . an employee of a political subdivision to recover damages for injury . . . allegedly caused by any act or omission in connection with a governmental or proprietary function . . . [t]he political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee.)

R.C. 2744.03(A)(6) (an employee is immune from liability unless the employee’s acts were with malicious purpose, in bad faith or in a wanton or reckless manner.)

R.C. 2903.31(B)(2) (No administrator, employee, or faculty member of any school shall recklessly permit the hazing of any person.)

R.C. 313.666(A)(2)(Bullying is defined as “Any intentional written, verbal, electronic, or physical act that a student has exhibited toward another particular student more than once” that causes mental or physical harm, and “[i]s sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student.”)

R.C. 3313.666(B)(8) (Principals and administrators must develop a “strategy for protecting a victim or other person from new or additional harassment, intimidation, or bullying.”)

Sargent v. United Transp. Co., 56 Ohio App.2d 159 (10th Dist. 1978) (“The amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty owed to an adult under the same circumstances.”)

Elston v. Howland Local Schools, 2007-Ohio-2070 (Teachers and coaches have “wide discretion under R.C. 2744.03(A)(5) to determine what level of supervision is necessary to ensure the safety of the children in” their care.)

O’Toole v. Denihan, 2008-Ohio-2574 (For conduct to be considered reckless, “the actor must be conscious that his conduct will in all probability result in injury.”)

Walker v. City of Toledo, 2009-Ohio-6259 (6th Dist.) (Breaching an internal policy with knowledge of a risk can be considered recklessness.)

Golden v. Milford Exempted Village School Dist. Bd. of Edn., 2011-Ohio-5355 (12th Dist.)(School officials are under no duty to watch over each child at all times.)

Anderson v. Massillon, 2012-Ohio-5711 (Reckless conduct is characterized by “the conscious disregard or indifference to a known or obvious risk of harm that is unreasonable under the circumstances and is substantially greater than negligent conduct.)

Afjeh v. Village of Ottawa Hills, 2015-Ohio-3483 (6th Dist.) (Generally, an employee of a political subdivision is immune from liability in a civil action. There are three exceptions: (1) “Acts or omissions outside the scope of employment,” (2) “acts or omissions made with ‘malicious purpose, in bad faith, or in wanton or reckless manner,’” and (3) “when liability is expressly imposed by the Revised Code.”)

State v. Clark, 2016-Ohio-2825 (8th Dist.) (“Teachers have a special relationship with children.”)

Educators’ Argument

R.C. 2744.03(A)(6) bestows statutory immunity upon public educators unless the educator acted recklessly. To qualify as reckless behavior that triggers the exception to statutory immunity under R.C. 2744.03(A)(6), the educator must have perversely disregarded a known risk. The fact that an altercation occurred in the presence of an educator does not constitute recklessness. To be successful, A.R. and her parents must demonstrate that the educators knew that S. would engage in behavior such as poking A.R. with a pencil and then fail to prevent such harm from occurring.

The educators had no reason to believe that S. or any other student would physically harm A.R. Upon receiving notice of the alleged teasing, the educators acted diligently in their response. They continually checked in on A.R., discussed the alleged teasing with all the kindergarteners, regularly monitored the classroom and lunchroom, and received assurance from A.R. that she was fine. Additionally, S. had no history of discipline or of violence. Because the educators took diligent steps to prevent the teasing of A.R., and there was no indication that A.R. would be harmed by any student, the educators did not act recklessly. Accordingly, the educators are protected by qualified immunity under R.C. 2744.03(A)(6).

Even if A.R.’s allegations are true, the educators still did not act in a manner that constitutes reckless behavior. Imperfect supervision does not rise to the level of recklessness. Additionally, educators do not have a duty to watch over their students every minute throughout the day. Indeed, educators have wide discretion to determine the necessary level of supervision to ensure the safety of their students.

If the decision is not overturned, educators exercising professional judgment in good faith would be subject to litigation more regularly. Any time an educator is made aware of teasing before an altercation, he or she would be exposed to liability. If the lower court decision is not overruled, it will discourage educators from entering or remaining in the workforce.

A.J.R.’s Argument

The Sixth District’s decision should be affirmed because there is a genuine issue of material fact about whether the educators acted recklessly. There is a heightened duty of care imposed upon teachers and school administrators because educators have a special relationship with their students, especially those of tender years. There is substantial evidence that demonstrates that the educators breached this duty of care by recklessly supervising A. R. and S., and by allowing the students to be in close proximity to each other, despite multiple previous bullying incidents, and in attempting to cover up their lack of supervision and care. Because the educators’ conduct was reckless, the educators are not entitled to immunity.

Further, the educators consciously disregarded statutes and policies that required the educators to take action when dealing with bullying. The educators did not take sufficient action, even though they knew that their actions would likely result in continuing harm to A.R. More specifically, the educators did not adequately respond to, investigate, prohibit, or document any bullying of A.R. This lack of action violated policies mandated by Ohio law.

Because bullying had occurred in the past and the educators were aware of it, future acts of bullying were foreseeable, and the educators’ conscious disregard for this possibility proximately caused the injury to A.R.

Since the incident occurred in the presence of Lute, A.R. and her parents maintain that Lute knew of the incident, but falsely claims ignorance. Lute did not report the incident to the parents or other administrators to cover up her lack of care.

A.R. and her parents suffered economic damages for A.R.’s medical treatment, both for the puncture wound and for mental and developmental injuries caused by the continued bullying. Further, A.R. should be compensated for her pain and suffering, loss of education, and mental anguish. A.R.’s parents should be compensated for loss of consortium. Additionally, the educators deprived A.R. of the privilege of bodily integrity, which is a substantive due process right.

Educators’ Proposition of Law Accepted for Review

There can be no finding of reckless conduct or perverse disregard of a known risk where the record establishes that in response to reports of teasing among kindergarteners, educators promptly speak with the kindergarteners about the teasing, frequently ask the kindergarteners how they are doing, and regularly monitor the kindergarteners in the lunchroom and classroom. Under these circumstances, if a kindergartener with no history of discipline or violence later pokes another kindergartener with a pencil, R.C. 2744.03(A)(6) shields these educators from liability.

A.J.R.’s Proposed Counter Proposition of Law

Summary judgment will be denied when a question for the jury exists as to whether educators with special relationship duties owed to a student of tender years acted in a reckless manner, and where evidentiary material in the record viewed in favor of the student demonstrates the educators knew the student was physically and emotionally bullied by another, yet placed the two in the same classroom and at the same desk, provided a community pencil and sharpener, turned a blind eye allowing the bully to stab and slash the student in the face with the dangerously sharpened pencil, and then failed to adequately respond to and report the incident as required by statutory law and school policy.

Amici in Support of Educators

City of Toledo

The City of Toledo has an interest in protecting public safety employees from being exposed to litigation based on a low threshold for recklessness. The case law surrounding qualified immunity in Ohio does not support the appellate court’s decision. Further, the evidence produced by A.R. and her parents relied on the testimony of the child as “gospel.” A.R. and her parents are lacking any evidence that the educators’ conduct rose to the level of recklessness that would satisfy the exception to qualified immunity. Therefore, the Court should reverse the appellate court’s decision and grant summary judgement.

Ohio Federation of Teachers and the Ohio Education Association

The Ohio Federation of Teachers (“OFT”) represents 15,000 members, the majority of whom are teachers working in large, urban school districts. The Ohio Education Association (“OEA”) represents over 100,000 public school teachers and staff and has an interest in how qualified immunity should be applied to these educators. The OEA and OFT assert that public employee immunity was intended to be a high standard to overcome in order to keep political subdivisions and their employees financially secure and capable of providing their services.

The appellate court’s decision undermines the purpose of this immunity because, if upheld, it would force schools to divert funding from education to fighting lawsuits. The Court should reverse the 6th District’s decision and grant summary judgment in favor of the educators.

Toledo Federation of Teachers Local 250

The Toledo Federation of Teachers Local 250 (“TFT”) is an employee organization representing 2,800 educators employed by the Board of Education of the Toledo City School District. One of TFT’s primary objectives is to advocate for its members individually, and defendant Lute is a member of TFT. In evaluating the recklessness exception to immunity, it is not necessary to determine that educators take perfect action to remedy bullying, but only that they take some steps to address the issue. Summary judgment was appropriate in this case, and the 6th District’s decision should be reversed.

TFT’s Proposed Proposition of Law

There can be no finding of reckless conduct or perverse disregard of a known risk where the record establishes that in response to reports of student teasing, educators spoke with the students about the teasing, frequently asked the students how they were doing, and regularly monitored the students in the lunchroom and classroom. Under these circumstances, if a student with no history of violence later pokes another student with a pencil, R.C. 2744.03(A)(6) shields these educators from liability.

Buckeye Association of School Administrators, Ohio Association for School Business Officials, Ohio School Boards Association, and Toledo Association of Administrative Personnel

The Buckeye Association of School Administrators (“BASA”) and the Ohio Association for School Business Officials (“OASA”) represent thousands of Ohio superintendents and school business officials, respectively. The Ohio School Boards Association (“OSBA”) is a nonprofit corporation that assists school district boards in effectively serving their students. The Toledo Association of Administrative Personnel (“TAAP”) is a labor union representing school administrators, including principals, within the Toledo Public Schools. These organizations argue that the 6th District’s decision threatens the fiscal integrity of public-school districts by diverting funds from education to litigating. If upheld, the decision would also result in uncertainty among school districts regarding the application of immunity. BASA, OASA, OSBA, and TAAP request that the Court reverses the 6th District’s decision and grant statutory immunity to the educators.

Student Contributor: Liam McMillin