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

“What in your view is perverse, what is it that’s reckless about the actions they (the educators) took—not in terms of reasonableness, but in terms of recklessness?”

Justice French, to counsel for A.R. and her parents

On July 8, 2020, the Supreme Court of Ohio heard oral argument in A.J.R., et al. v. Board of Education of Toledo City School District, et al., 2019-1355. At issue is whether the educators in this case were entitled to immunity or whether there was sufficient evidence of recklessness in the handling of alleged bullying to overcome immunity.

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.” The trial court 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. The trial court 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  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.

The concurring judge found that summary judgment should not have been granted for a different reason, namely because A.R. and her parents set forth sufficient facts to rebut the presumption of immunity under R.C. 2744.03(A)(6).

The dissenting judge 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.

*A Ninth District panel sat for the Sixth District by assignment

Read the oral argument preview here.

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.” In the context of R.C. 2744.03(A)(6)(b), recklessness is “a perverse disregard of a known risk.”)

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.)(Syllabus paragraph four).

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.”)

At Oral Argument

Arguing Counsel

Jennifer J. Dawson, Marshall & Melhorn LLC, Toledo, for Appellants Amanda Lute, Cynthia Skaff and Ralph Schade

Anthony J. Glase, Toledo, for Appellees A.R. and her parents A.J.R. and C.R.

Educators’ Argument

None of the educators in this case acted recklessly, and therefore all three are entitled to immunity under R.C. 2744.03. In the context of immunity, this Court has defined recklessness, distilled to its essence, as “a perverse disregard of a known risk” or that “the actor must be conscious that his conduct will in all probability result in injury.” Even construing the admissible evidence in the record most strongly in appellees’ favor, reasonable minds could come to but one conclusion, which is that the appellees failed to establish that any of the educators perversely disregarded a known risk or that they knew that their conduct would in all probability result in A.R. being injured. 

The undisputed facts in the record show that in response to reports of teasing, the educators promptly talked with the kindergarteners about the alleged teasing, regularly monitored the students in the lunchroom and classroom, and frequently checked in with A.R. to find out how she was doing.  A.R. assured the educators that all was well, and she was fine.

To determine whether any of the educators perversely disregarded a known risk, the Court must consider only the admissible evidence in the record, and not appellees’ characterizations of the evidence.  The only admissible evidence in the record about what the educators were told by A.R.’s parents before the alleged incident is that the kindergartners teased A.R. for being 4 years old, and tried to convince A.R. to drink a mixture of food and milk in the lunchroom.

Appellees’ characterizations and generalizations must be carefully examined to determine specifically what notice each educator had of the teasing before the alleged incident, and how each educator responded.  Take jostling in line as an example. The only evidence of that is that A.R. told her parents about it. Even though it is unclear that the parents reported this to any of the educators, for summary judgment purposes we assume that they did. But jostling in line is very typical of kindergartner behavior and it is certainly not a harbinger of a violent act to follow. Nor is it clear if anyone was asked who pushed A.R. There is no evidence of that at all. So, based on that, there is no indication that S. would cause any harm to A.R.

As to the incident itself, the admissible evidence was that Ms. Lute, A.R.’s kindergarten teacher, testified by way of affidavit that although both she and her assistant teacher were right in the room when this allegedly happened, she saw nothing and heard no crying or screaming. No student reported the incident to her. So, if the incident occurred, Ms. Lute was unaware of it. The other admissible evidence in the record is A.R.’s mother noticed a mark on her daughter when she picked A.R. up from school, but instead of taking A.R. for medical treatment, she took A.R. to a Girl Scout meeting. She also sent A.R.  back to school the next day. Four days later at a Well Check, the unauthenticated medical report states the pediatrician noted there was a poke and prescribed no treatment.

Since the issue in the case is recklessness, the only issue is what the educators knew before the incident and how they responded. Turning first to Assistant Principal Cynthia Skaff, she was informed by A.R.’s father about his concern that S. was teasing A.R. During that discussion, A.R.’s father claimed A.R. was being teased for being 4, but he did not mention any other specifics. It is uncontroverted that shortly after that conversation Ms. Skaff spoke with A.R. and asked about the teasing. A.R. told Ms. Skaff no one was being mean to her and that S. was her friend. A.R.’s mother later claimed she discussed a food issue, but Ms. Skaff denies A.R.’s mother discussed that. But even assuming that allegation is true, Ms. Skaff acted diligently and conscientiously.  It is uncontroverted that out of an abundance of caution Ms. Skaff checked in with A.R. periodically, in both the lunchroom and the classroom. Based on Ms. Skaff’s personal observations during these periodic checks in the lunchroom and the classroom, A.R.’s assurances to Ms. Skaff that she was fine, and because S. had no history of discipline or violence, Ms. Skaff had no reason to believe that S. would physically harm A.R. In short, there is simply no evidence in this case that Ms. Skaff perversely disregarded a known risk or that she knew her conduct would in all probability would result in AR being injured.

Turning next to Principal Ralph Schade, in response to a report that some kindergartners were teasing A.R. for being 4. Mr. Schade spoke with the other kindergartners and frequently visited A.R. in the lunchroom. It is uncontroverted that during these visits, the principal found A.R. eating lunch with the kindergartners who had allegedly previously teased her for being 4 and was always told A.R. was doing well.

A.R.’s parents claim they told Mr. Schade that A.R. was being teased in the lunchroom. Although Mr. Schade denies this, assuming for the purposes of summary judgment this is true, the principal’s periodic visits to the lunchroom and checking with A.R. during these visits was the appropriate response. Because A.R. repeatedly assured Mr. Schade she was fine, because Mr. Schade himself never observed any teasing during his frequent visits with A.R., and because S. had no history of discipline or violence, Mr. Schade had no reason to believe that S. would physically harm A.R. There is simply no evidence in this case that Mr. Schade perversely disregarded a known risk or that he knew that his conduct would in all probability result in A.R. being injured.

Finally, we turn to the record regarding Amanda Lute, A.R.’s kindergarten teacher. Ms. Lute was on leave during the first part of the school year but was told when she returned that other kindergartners had teased A.R. for being 4.  She stated that this type of teasing was not unusual in kindergarten, but she nevertheless monitored the situation to make sure there would be no teasing. It is uncontroverted that Ms. Lute never observed any teasing during the more than three months A.R. and S. were in her classroom.  Ms. Lute spoke regularly with A.R.’s mother who never mentioned concerns to Ms. Lute about A.R. being teased.  Although A.R.’s father claimed he told Ms. Lute he hoped A.R.’s birthday party would eliminate issues in teasing, there is no evidence in the record that either parent made any specific report to Ms. Lute about any teasing. Because Ms. Lute never observed any teasing in the more than three months she was with the students before the incident, and because S. had no history of discipline or violence, Ms. Lute had no reason to believe that S. would physically harm A.R. There is no evidence that Ms. Lute perversely disregarded a known risk or that she knew her conduct would in all probability result in A.R. being injured.

While it Is true that A.R.’s parents alleged their daughter told them about name-calling, teasing about being 4, being pushed in a bathroom line and being left out of a playgroup, there is no evidence in the record about which of these specific allegations they communicated to which educator. Even assuming for the purposes of summary judgment that A.R.’s parents communicated all these allegations to all the educators, none of these alleged statements put the educators on notice that S. would physically harm A.R. This is especially true because even though A.R.’s parents informed the educators that S. and other kindergartners had teased A.R., they don’t even allege that they reported any instances of physically harming or even threatening to harm A.R. It is undisputed that S. had no prior discipline in her file, no record of physically harming or threating to harm anyone, and no history of physically harming or threatening to harm A.R. The evidence is that after being informed of teasing, the educators appropriately monitored the situation, and periodically visited A.R. to make sure she was doing well. A.R. gave no indication to the educators she was not doing well.  To the contrary, A.R. said no one was being mean to her, and that S. was her friend.

This Court has held that the purpose of Chapter 2744 is the preservation of the fiscal integrity of political subdivisions. If educators are exposed to liability every time they are made aware of teasing even before any incident happens, even when they respond diligently and appropriately, it will discourage people from becoming educators and discourage educators from remaining in the profession. If this Court finds on these facts that there is a genuine issue of material fact as to whether the educators perversely disregarded a known risk or knew their conduct would in all probability would result in A.R. being injured, it will have grave consequences and would eviscerate Ohio’s statutory immunity.

Appellees’ Argument

The main issue here is whether A.R. has presented sufficient evidentiary material to defeat the educators’ presumption of immunity.  When construing all evidence and inferences in appellees’ favor, and when viewing educators’ evidence with a skeptical eye, it is clear that A.R. has presented several genuine issues of material fact, the most glaring of which is whether the educators witnessed the bullying incidents in March when A.R. was stabbed and slashed in the face. Other issues of fact are whether this incident happened, whether the educators saw it, and if they did why it wasn’t addressed, why  care wasn’t provided, and why  it wasn’t reported. If Ms. Lute did not see what happened in her classroom, isn’t that reckless supervision? Regardless of these disputed facts, the educators claim they are still immune from civil liability.

Generally, when determining recklessness as a matter of law, the court will look at specific facts in evidence and the question of recklessness will be considered on a case-by-case basis. There are two key recklessness factors to consider in this case. One is that at the time of the bullying incidents, A.R. was a child of tender years, and as such presumed unable to protect and care for herself as a matter of law. Second, A.R. and the educators were in a student/teacher relationship which under Ohio law is recognized as a special relationship.  As a result of these two factors, a heightened duty is owed and the recklessness standard needs to be analyzed accordingly.  This is especially true because the educators knew A.R. was an early entrant gifted student and this was her first experience with peer-to-peer interaction. The children involved could have been separated or one moved to a different classroom.

The bigger point is reasonable actions should have been taken to keep the children who have known issues separate and safe and ultimately supervise them. If they couldn’t be moved to a separate classroom, S. and A.R. should not have been partnered. Here, A.R. and S. weren’t kept separate, were placed alone at the table, were required to be partners, required to work together, were given sharp objects and then the educators turned a blind eye. The record reflects that A.R. told her teacher about this incident.

The known risk that was disregarded here is bullying as defined by the educators’ own policy. That includes social, emotional, relational and physical bullying.  Generally, bullying in the classroom is a known risk. In this case there is evidence that A.R. and her parents notified the teachers and the administrators of A.R. being bullied by the same classmate, S, on at least four occasions. The record reflects that the teachers and administrators were either aware or should have been aware of S. bullying A.R. socially, emotionally, verbally and physically throughout the school year. As for conscious disregard, when talking about kindergarten students and the special relationship of the teacher and pupil as highlighted by the appellate court, it was unreasonable and potentially a question of fact as to whether it was reckless not to separate the two students, to give them sharp objects and then fail to supervise them.  Additionally, looking at the totality of the circumstances, there was no bullying prevention or planning done at any time during the school year. These are the aggravating factors that increase this beyond mere negligence, since this is a case involving the actions and inactions of professionals relating to kindergartners.

Even more troubling, after the stab and slash the teachers and administrators failed to provide any attention or care to A.R. and failed to report the incident to A.R.’s parents. That is also captured in the parents’ affidavits as A.R. reported it to them. What happened was that the bully came over with a sharp pencil, hit A.R. in the cheek, and then caused a slash mark, all of which is visible in the photograph taken 4 days later. There is a noticeable puncture wound that doesn’t just happen with a simple poke. While the stabbing is more severe, it is considered physical bullying, just as being pushed in the bathroom line and being forced to eat a nasty concoction in the lunchroom are considered bullying. The point is, this increased and escalated over time and nothing was ever done to address it or prevent it. What the educators claim started out as mere teasing escalated to being pushed in line, being bullied in the lunchroom, and then on to another bullying incident that was more severe. 

The 6^th district found sufficient evidence of recklessness to overcome the presumption of immunity. This alone shows reasonable minds can find that A.R. presented genuine issues of fact regarding the educators’ reckless actions and inactions.  A.R. has presented sufficient evidentiary material and the questions of fact presented in this case are best suited for the trier of fact. This case is about holding public educators responsible and accountable.

What Was On Their Minds

Specific Record Evidence Showing Recklessness

Weren’t there some allegations that A.R. was jostled or pushed in lines, asked Chief Justice O’Connor? Was there any communication with regard to the facial injury? With the fact the child went to school the next day?

Is reasonableness our standard, asked Justice French? Isn’t the Court looking for whether there is a perverse disregard for a duty that is owed? What is perverse here? What is it that’s reckless about the actions the educators took—not in terms of reasonableness, but in terms of recklessness?  What evidence is there in the record that the educators actually witnessed what occurred? Is there any evidence in this record that either the teacher or the principal turned a blind eye?

What evidence is there in the record that the educators knew, should have known, or were reckless in not knowing that this child S. could and would exact that kind of injury on A.R. or any other child, asked Justice Stewart? Anything rising to the level of injury plaintiffs describe?

Duty Owed to Students

Is a heightened standard or duty owed individually to A.R. or to A.R. and all the other students in the class in general, asked Justice Stewart?

What the Educators Should Have Done

If the allegations are true, what more could have been done here to protect A.R., S., and everyone in the class from the conduct of children against each other in this manner, asked Justice Stewart? Should one of the students have been moved to another class? If so, which one?

Summary Judgment

What are the remaining issues of material fact, asked Justice French? Is there a dispute about whether the teacher actually witnessed the incident?

Is there a dispute of fact over whether the incident happened, and the educators saw it, asked Justice DeWine? Did anyone testify the kindergarten teacher saw what happened?

Is it disputed that the principals as well as the teacher checked in with A.R. frequently to see how she was doing, and bullying was addressed with the other students, asked Chief Justice O’Connor? Is there contrary evidence? Was there expert testimony from some kind of child psychologist that would say that is how you deal with this?

The Incident/A.R.’s Injury

How many students were in the classroom at the time this alleged incident occurred, asked Chief Justice O’Connor? Both a teacher and a teacher’s aide were present? Was there a medical record here?

Can you describe what happened, Justice French asked A.R.’s lawyer, noting his use of the description “slash and stab.”

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Educators certainly should be liable for bullying, which is a very serious matter, but nothing I heard in the argument came close to pointing out disputed issues of fact on reckless behavior in this case. What was the Ninth District, sitting for the Sixth, thinking here? I predict a reversal.

Mr. Glase, while clearly caring deeply about his clients and this issue, was totally out of his depth here. His argument was unpersuasive and ineffective. He kept repeating basic legal generalizations like children of tender years being owed a special duty and needing special protections, arguing about reasonableness, which is a negligence standard, and repeatedly failing to provide specific evidentiary examples of recklessness. Justice French really took the lead challenging him on this, particularly pushing back on Mr. Glase’s description of the incident as “slash and stab,” and saying the educators “turned a blind eye.” Chief Justice O’Connor was equally skeptical. I noticed that the amended complaint in the case alleged “reckless negligence.” If one of my torts students had used that term, I would immediately have called the student out for that.  

Ms. Dawson, on behalf of the educators, gave a laser-like argument rebutting any suggestions of reckless behavior as to each of the individual educators involved in the lawsuit, and emphasizing the absence of the evidence necessary to create any genuine issues of material fact on this issue. In fact, she got no more than a couple of half-hearted questions during her entire argument.  She also very smartly repeatedly used the word “teasing” instead of “bullying,” and no one ever called her on where the line was between the two.  I do, though, wonder why no one questioned her repeatedly using “perverse disregard of a known risk” to define reckless.  While the Court did use that language in O’Toole, the syllabus definition (for what that is now worth) of reckless in the immunity context from Anderson v. Massillon is “conduct that is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” While that doesn’t seem as difficult to meet as “perverse disregard,” which to me seems more like a wantonness standard, I didn’t hear anything during the argument to suggest genuine issues of material fact as to the educators’ conduct under either standard. The Anderson definition is also the one used by the appeals court majority, although the “perverse disregard” language was used along with the Anderson definition in the dissent.

The Supreme Court may emphasize or clarify what needs to be alleged to show reckless behavior in the specific context of a bullying case, or clarify the definition of recklessness it wants to use in this context, but I think this case is going to have little precedential value and just fail on the facts.

In the highly unlikely event that A.R. does get past summary judgment, I think there is no chance she will prevail in this case.

To Student Contributor Liam McMillin

Personally, I am torn. I believe that exceptions to qualified immunity for educators in bullying cases should be closely examined, and a strong case could be made that educators do have a higher duty to notice and prevent bullying. But this is not that case.

Jennifer Dawson for the educators was straightforward in her argument and the justices were clearly sympathetic. Ms. Dawson was clear from the get-go: A.R. has not provided sufficient admissible evidence to overcome the recklessness exception to R.C. 2744.03. The justices seemed to agree: Chief Justice O’Connor and Justice Stewart lobbed a couple softball questions to Ms. Dawson, seeming only to provide Ms. Dawson with a chance to strengthen the educators’ argument. The Court seemed in such support of Ms. Dawson that even though her audio cut out multiple times, no justice bothered to ask her to repeat herself or clarify. For the most part, the Court allowed Ms. Dawson to speak without interruption.

The same cannot be said for her opponent, Anthony Glase. Mr. Glase, counsel for A.R., claimed to be making an argument solely based on sufficiency of evidence to establish genuine issues of material fact, but, from his very first substantive sentence, conflated the sufficiency of evidence question with whether or not the educators are immune under R.C. 2744.03. Throughout his argument, Justice French attempted to steer Mr. Glase back to these actual issues of material fact, but Mr. Glase, instead of taking the opportunity to focus on evidentiary questions, danced around each question, providing conclusory inferences based either on his own opinion, or solely from the child A.R., through the affidavit of A.R.’s parents. Continually, he would rely on the phrase “the record reflects,” but would point to nothing in the record. Either Mr. Glase could not decide on a strategy prior to the calling of the case, or he consciously avoided pointing to specific pieces of evidence in the record because he wanted to avoid any scrutiny of that evidence.

Not only does Mr. Glase’s evidentiary argument fall short, he seems to have a limited understanding of recklessness at best. Justice French, standing in for a 1L Torts professor, points out to Mr. Glase that he continued to use the word “reasonable” in his argument focused on recklessness. He would have been better off focusing solely on evidence in the record that, when construed in his favor, raises a genuine issue of material fact to avoid summary judgment. But, for whatever reason, he did not.

I am confident that the Court will rule in favor of the educators, reversing the appeals court, and uphold their protection under qualified immunity. However, this ruling will likely be based on the quality of the case presented, and hopefully will not touch the complicated world of qualified immunity in cases of bullying at school. I hold on to hope that this case will be easily distinguished from in the future and will not create a precedent making qualified immunity a higher standard to overcome.