My child was the victim of a premeditated assault earlier this month. The student who attacked her had prepped a class of kids that it was going to happen and so my daughter was caught by complete surprise.
The assault was captured on several cell phones and was sent to the girl who did the assault and she IMMEDIATELY posted it on social media along with highlighting a personal issue during the assault that occurred with my child highlighting blood stains in the middle area of her body.
You can imagine how mortified my daughter was. The social media reaction was immediate from the attacker’s followers. Many stated my daughter shouldn’t ever return to school and one child said she should “kill herself.”
I want my daughter to go back to a private school.
The school did not act appropriately in confiscating the other girl’s phone so she wouldn’t have any access to social media, nor did they pull in the kids that were filming the assault. The kids filming the assault were accessories to the assault. The school took away my daughter’s phone right after the assault and did not take away the other girl’s phone.
The parent of the other girl let her daughter keep her phone during her suspension and continued to post about the incident, mocking my daughter. The bully who assaulted my daughter even posted while she was arriving at the police station when the school had her cited and arrested.
My daughter cannot go back to her school for the obvious reasons. She had to drop out of her dance team which we just paid for, and now we are looking to pay up to $65k for the next three years for our daughter to go to a private school out of the district. This includes all expenses including transportation costs.
I want the school to pay for it and I also want my daughter to be financially compensated for this emotional turmoil and distress. What kind of case do we have? What can we do? Thank you for any information you can provide.
Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.
We are sorry to hear of your daughter’s scary and unfortunate experience. You might be able to file a lawsuit, on behalf of your daughter, against the public school on a negligence theory. It’s difficult to say for sure, though, whether you can recover the cost of your daughter’s private education from the school.
Evidence of Bullying
We have to first state the obvious. Your daughter regrettably experienced several forms of bullying in this case. These include:
- Physical intimidation (the actual assault)
- Verbal bullying (the rude and insulting comments made directly to her)
- Cyberbullying (the offensive comments made on social media)
- Sexual bullying (the comments regarding the bloodstains in the middle of her body)
Fortunately, the state of California has several anti-bullying laws. These laws seek to prevent the type of behavior exhibited in this case. They also allow schools to suspend or expel students who bully others.
One such law states:
“A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent of the school district or the principal of the school in which the pupil is enrolled determines that the pupil has…caused, attempted to cause, or threatened to cause physical injury to another person.”
This law provided your daughter’s school with the authority to suspend the bullying student.
Potential Lawsuit Based on Negligence
Given the facts of this case, the most successful chance you have to file a lawsuit against the school is one based on negligence.
A plaintiff must prove the following to prevail on a negligence lawsuit filed against a public school:
- The school had a legal duty of care
- The school failed to take reasonable action to stop the bullying
- The student was in fact injured due to the bullying
- The student’s injuries resulted in damages, such as medical costs
To determine whether a school was negligent, California law considers whether a school’s actions, or reactions to an incident of bullying, were reasonable under the circumstances.
Let’s consider the facts here. There is no question that your daughter was injured due to bullying, and these injuries resulted in damages. Further, the law states that schools and school administrators do have a duty to protect students against bullying.
A question, though, is whether the school, in this case, failed to take reasonable steps to stop the bullying.
Two facts suggest that the school did not act reasonably:
- The first is the fact that the assault was premeditated.
- The second is the reality that an entire class of students knew about the attack before it happened.
These facts suggest that the school should have known of the assault before its happening and should have had a practice in place to prevent such severe incidents of bullying.
It’s reasonable to say that, if an entire class of students knew about an act of bullying, the school itself should have had this knowledge. Further, a school acting reasonably, under these circumstances, should have reacted more quickly to the incident by following applicable policies.
If a court agrees with this line of thinking, you may be able to raise a negligence claim against the school. A difficulty, however, still remains with the issue of sovereign immunity.
Sovereign Immunity and the California Tort Claims Act
Sovereign immunity means that certain public entities are immune from lawsuits for injuries caused by them or their employees. These entities include public schools and school districts.
In most states, though, there are exceptions to this general law. If applicable, these exceptions still allow a plaintiff to sue the government or another public entity.
In California, the California Tort Claims Act provides the exception by which a plaintiff can sue a public school, based on negligence, even though it is a public entity. There are, however, still some hurdles in suing a school under this Act.
The statute imposes several requirements that you must follow to sue the government successfully. For example, the Act requires that you give notice to the government within a set time before filing a suit. If you don’t perform this task, you can lose your opportunity to seek money damages.
Further, plaintiffs do have the right under the California Tort Claims Act to recover compensation for their injuries. For example, parties can recover compensation for:
Given these, if you were successful in a suit against the school, you could get reimbursed for any of your daughter’s medical expenses. Also, she might be able to get a pain and suffering award.
A tricky matter is trying to have the school pay for your daughter’s private education. Payment of this type is not specifically addressed under the Act. Sometimes plaintiffs can receive monetary awards in personal injury cases for “inconveniences.” While the private school expense may fall into this category, it’s not entirely clear.
Given this uncertainty, you should talk with a local attorney. The attorney will know the state and local laws that apply to your situation and will know how to navigate the hurdles within the California Tort Claims Act.
Further, you are wise to talk with the attorney to see if the facts of your case do support a negligence claim against the school. When meeting with the lawyer, you should take with you any evidence you have of the assault. You should also provide the attorney with any information concerning the school’s involvement in the case.
Learn more here: Legal Recourse for School Bullying
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.
We wish you the best with your claim,
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