Wrongful Death Suit Against School Officials Likely to Go to Trial

By Amber Lester Kennedy Thursday, February 17, 2011

A judge ruled Wednesday that some confidential documents can be used in a wrongful death lawsuit against four York County school administrators, but can only be seen by the case’s lawyers.

Substitute York-Poquoson Circuit Court Judge Randolph West reviewed confidential records from the Department of Social Services, along with guidance and disciplinary records from York County schools over the past month. He told lawyers they’ll be able to review some of the documents and take notes, but cannot share those notes.

Alise Williams is seeking $10 million in damages from the school officials for the death of her son, Christian Taylor, who hanged himself at home on May 31. At the time of his death, Taylor was a 16-year-old freshman at Grafton High School. Williams claims the officials — former Grafton Principal Paul Hopkins, Assistant Principal Craig Reed, Assistant Principal Karen Fahringer and counselor Joseph Erfe — were aware her son was bullied for six months and did nothing to protect him. Taylor transferred to Grafton High School from Texas in December 2009.

The judge refused to rule whether the defendants should be immune from claims of simple negligence, however. At Wednesday’s hearing, defense lawyer David Corrigan tried to prove the doctrine of “sovereign immunity” protected his clients. In Virginia, sovereign immunity does not invalidate a claim, but protects state employees who were acting in their official capacity.

A previous trial, Messina vs. Burden, established that immunity breaks down the further an employee is from the highest levels of government. A four-factor test determines whether an employee is eligible for sovereign immunity. The court must consider: the nature of the function performed by the employee; the extent of the government’s interest and involvement in the function; the degree of control exercised by the government over the employee; and whether the act complained of involved the use of judgment and discretion. If the act that lead to the complaint did involve the use of judgment and discretion, sovereign immunity is more likely to apply.

Corrigan argued that his clients, employees of the York County School Board, were performing government functions in their leadership of the school. He said the School Board has direct interest and involvement in their jobs, and the board exercises its authority through its employees. His main point, however, is that teachers exercise judgment and discretion in all of their supervision of students.

Williams’ lawyer Oldric LaBell didn’t think sovereign immunity applies in this case, saying he felt that where bullying is concerned, the defendants have a duty to report instances of abuse and protect students. He said a deposition had revealed guidance counselor Joseph Erfe was aware of instances in which Taylor was bullied and did not report the bullying to the other school officials. LaBell argued that reporting bullying is mandatory, not discretionary, and alleged that negligence allowed bullying to continue. Sovereign immunity cannot be applied in instances where gross negligence can be proven, he said.

“We agree that most disciplinary actions involve discretion, but in this case, you have a duty to pass that on,” LaBell said. “There’s no discretion about it.”

Ultimately, West said he was not prepared to rule on whether the officials’ actions were discretionary or non-discretionary because he wanted to leave that up to the judge who will preside over the case when it goes to trial. York-Poquoson Circuit Court does not have a permanent judge, but West was confident a new judge would be named soon.