TAMPA, Fla. (CN) - A school district must face wrongful-death claims related to the tragic asphyxiation of a wheelchair-bound girl on the bus home, a federal judge ruled.
I.H., as she is named in the decision, suffered from neuromuscular disorder and used a wheelchair.
Her parents, Lisa and Dennis Herrera, say I.H. had been riding home on a Hillsborough County school bus in January 2012 but was not properly position and secured.
I.H. eventually experienced some difficulty holding her head up, and her airway became obstructed, according to the couple's second amended complaint.
After noticing I.H. was not breathing, the bus driver allegedly called Lisa Herrera and asked her to come to the bus.
He neither attempted to resuscitate nor called 911, according to the complaint.
When Lisa Herrera's attempts to revive her daughter were unsuccessful, the child was airlifted to St. Joseph's Children's Hospital and pronounced dead.
Her parents claimed that the Hillsborough County School District and board violated the Individuals with Disabilities Act. They said such disregard has led to disabled students sustaining injuries in the past.
One student was left on a bus, another was dropped off at the wrong location and hit by a car, and another was sent home with an unexplained broken femur, the Herreras said.
They claimed that I.H.'s difficulty in keeping her head up was known to the school, but that it never made the proper accommodations. The school also allegedly did not have enough transportation employees to accommodate the needs of so-called exceptional student education students like I.H.
The board and district moved to dismiss on the basis of failure to state a claim. They denied that they had a have a duty to protect I.H. because she was not in their custody.
U.S. District Judge James Moody disagreed Tuesday, however, finding that the Herraras have properly stated a claim under the Americans with Disabilities Act, Section 1983 of Title 42, and Section 504 of the Rehabilitation Act.
"These more detailed allegations support Plaintiffs' claim that Defendants knew that harm to I.H.'s federally protected rights was substantially likely and that Defendants failed to act on that likelihood," according to the ruling. "They also sufficiently allege a failure to accommodate I.H.'s disability."
The couple also sufficiently alleged that defendants had a "practice, policy, or custom (as opposed to a third party's act) [that] violated I.H.'s constitutional rights." (Parentheses in original; brackets added.)
Moody gave the board and district two weeks to file an answer.
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