HOUSTON – The 14th Court of Appeals recently affirmed a ruling keeping the Houston Independent School District from escaping a pre-suit petition seeking to investigate how a 5 year old had his jaw fractured while being escorted to the principal’s office.
The child’s father, Albert Durrell, filed the petition in September 2016. In turn, HISD filed a plea to the jurisdiction, asserting governmental immunity.
The trial court denied the plea and a HISD appeal soon ensued.
Court records show the child was injured on Aug. 25, 2016 while being escorted to the principal’s office of Wilson Montessori Elementary following a “behavior incident” in the cafeteria.
In his petition, Durrell alleges school staff and possible persons not employed by HISD escorted the child. When Durrell was called to the school by the magnet coordinator, she told him that the child had been injured and had blood on his clothing, although she said she did not know whose blood it was.
Upon arriving at the principal’s office, the principal, magnet coordinator, school nurse, and others were present. The nurse was restraining the child.
Durrell claims that during the discussion that followed, the magnet coordinator stated that her elbow had contacted the child’s face in the hallway, and the principal also acknowledged that she had contact with him.
“(The child) had obvious bruising and bleeding around his lower teeth,” the petition states.
Durrell rushed the child to a dentist’s office where he was diagnosed with a jaw fracture and had three teeth removed.
Durrell further alleges that he had been informed that surveillance video existed from the areas of the school where his son was injured. Durrell made an oral and written request of the principal to be allowed to view the video, and was told that he needed to request the tapes in writing at HISD police headquarters.
Durrell did so but to date has not been allowed to view the video, court records state.
At first, Durrell was told that he could see the video after the faces of other children were obscured, and then later he was told he would not be allowed to view the video at all.
In his petition, Durrell sought to depose an HISD representative who was knowledgeable regarding the incident, the contents of the surveillance video, the investigation into the incident, HISD policies concerning such incidents, and the identity of all persons involved in, or with knowledge regarding, the incident.
Durrell further requested that HISD be directed to produce, at the time of the deposition, all documents related to the investigation and copies of all surveillance videos showing the incident.
In regards to the purpose of his requests, Durrell stated that he sought to investigate potential claims against HISD or other culpable parties, specifically mentioning intentional acts, gross negligence, and possible criminal charges.
When HISD answered Durrell’s petition, the district asserted the trial court lacked jurisdiction over his allegations and that Durrell had failed to exhaust his administrative remedies first, court records show.
Also noteworthy, HISD suggested that it had allowed the video to be overwritten in a later pleading. However, no evidence was provided in support of the assertion.
On March 29, the 14th Court of Appeals found that because HISD has thus far withheld information, Durrell cannot know whether his claims will require exhaustion of remedies.
On appeal, Durrell maintained HISD was “stonewalling” him, ensuring many of the circumstances surrounding the incident remain a mystery.
Justices further opined that because Durrell’s allegations encompass potential claims against nonemployees on which he would not have to exhaust his administrative remedies, Durrell’s failure to plead that he exhausted his administrative remedies as to his potential claims against professional employees of HISD did not deprive the trial court of subject matter jurisdiction over his petition.
On appeal, HISD had questioned whether the allegation of an injury to a student at a public school that required personnel to exercise judgment “in responding to a behaviorally challenged student that became combative” and necessitated “the use of force” triggers a waiver of governmental immunity.
HISD is represented by attorney Joseph Alan Callier.
Durrell is represented by attorney Clyde “Chip” Adams.
Appeals case No. 14-16-00991-CV
First filed in Harris County District Court, case No. 2016-61502