Education Government Regional
Mother Whose Autistic Son Was Twice Left Off School Bus Can Refile Suit
July 17, 2017 August 9, 2017 EVA FEDDERLY
autism, children, Florida, Regional1, schools
TAMPA, Fla. (CN) – A federal judge dismissed a lawsuit filed by the mother of an autistic child twice left behind on his school bus, but gave her leave to refile her lawsuit.
As recounted in the July 13 ruling, the student, identified as I.C., was diagnosed with being "on the autism spectrum" and having associated behavioral and emotional disabilities.
The ruling says he attended Our Children's Academy, a charter school run by the Polk County, Florida school district, and regularly took a bus to school.
In a federal lawsuit filed against the academy and the school district in April, I.C.'s mother, Suzanne Riha, said that on two separate occasions in March 2016, she placed her son on a bus used to transport children with special needs to the academy.
Because of its dedicated purpose, the bus had both a driver and an attendant on board. It also had a video surveillance system and an electronic monitor, although the latter could easily be deactivated by the child passengers.
Riha said on the days in question, neither the driver nor the attendant checked to see if the bus was entirely empty after the other child passengers left the bus.
On both days, I.C. fell asleep and because the electronic monitoring system had been deactivated, there was no backup system to alert anyone to his presence on the bus.
Riha said the video surveillance system was working on the first day, and what it showed was the driver returning the bus to the storage facility and the driver and attendant leaving without checking the bus for passengers.
She says her son awoke sometime later "disoriented and afraid." Eventually, she says, he climbed out of the bus's emergency window and made his way, walking and hitchhiking, the 30 miles to home.
She says the following day I.C. told his bus driver what had happened, but evidently it had no impact on the driver because seven days later a nearly identical series of events transpired.
Riha said the school never told her that her son had not gone to class on the days he was left in the bus, and that she only learned what happened later, from his therapist.
Riha's lawsuit sought a minimum of $15,000 in damages on claims of negligent supervision, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress and false imprisonment.
After the defendants moved to dismiss the complaint, Riha asked the court to dismiss her complaint with leave to amend. The court granted her request.
She filed an amended complaint on May 31, adding claims the school and the district violated I.C.'s constitutional right to due process; his right to remain free from confinement under the Fifth and Fourteenth Amendments; and his right to adequately safe travel and timely access to education and educational and therapeutic opportunities via transportation provided at an acceptable level of accessibility, service, quality, and safety.
In explaining her decision to dismiss the case with leave to once again amend it, U.S. District Judge Virginia Hernandez Covington said as they stand the allegations in the in lawsuit "show only — albeit unfortunately — that one bus driver and one bus attendant failed to notice one child was left on the bus on two different days.
"But, there are no allegations anyone other than the three people involved in these two incidents (I.C., the driver, and the attendant) experienced a similar event," she said.
"Furthermore, there are no allegations the School Board knew of and deliberately disregarded a pattern of children with special needs being left on buses," Hernandez Covington wrote. "A similar lack of pervasiveness holds true with respect to the … claim against Our Children's Academy.
"At most, the well-pled allegations show only that Our Children's Academy failed to report two instances of I.C.'s absence," she said. "There are no allegations, however, that Our Children's Academy knew I.C. was on the bus but allowed it to leave. Nor are there any allegations that Our Children's Academy failed to report to parents similar instances of children with special needs being left behind on buses."
"Moreover, there are no allegations that Our Children's Academy knew of and deliberately ignored a pattern of children with special needs being left on buses," Hernandez Covington wrote.
"In sum, the Amended Complaint does not contain facts that plausibly give rise to a claim to relief," she said.
But Hernandez Covington not only gave the mother and son a second chance to re-file the complaint, she also offered them advice on how to do so.
"Each distinct constitutional violation alleged should be asserted in its own count and specify the Defendant against which it is brought," she said. "And, with respect to the false imprisonment claim in particular … [such] a claim of false imprisonment requires a showing of common law false imprisonment and a due process violation under the Fourteenth Amendment."
Hernandez Covington continued: "There are three elements to a common-law false imprisonment claim: 'an intent to confine, an act resulting in confinement, and the victim's awareness of confinement.'
"The Amended Complaint does not allege facts showing any Defendant intended to confine I.C.," she said.
Steven Whitaker, the executive director of Our Children's Academy, told Courthouse News, "We're going along participating, doing whatever we can. The student is still enrolled at our school. That should say enough about what were providing to the our students onsite. We've worked with our sponsor, Polk County, in ensuring that all students are accounted for on different levels. We want to make sure things don't happen like this again. We're glad nothing tragic happened with [the student], and we're glad he's still able to come to our school."
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