Middle School Must Face Claim Over Shooting

(CN) - Parents of two Indiana middle school students who were hurt in a shooting can pursue their allegation that the school failed to keep their kids safe, the state appeals court ruled.

C.J. was an eighth-grader at Martinsville West Middle School in 2011. His friendship with classmate Michael Phelps became strained after both boys dated the same girl, N.A.

The boys never fought at school, but Phelps tried to start a fight with C.J. on the street after a basketball game.

Phelps, who repeated the sixth grade, was disciplined 50 times in his four years at the school. Seven of those incidents involved harassing, threatening or assaulting other students.

In March 2011, he told some students he wanted to "just blow up the school," a comment that earned his a 10-day suspension.

A teacher overhead an argument between C.J. and Phelps and told C.J. "not to feed into it and to walk away."

Principal Suzie Lipps began the process of expelling Phelps, but his mother took him out of the school before that could happen.

C.J.'s girlfriend, A.M., testified that she told two teachers that Phelps had threatened C.J.

On the morning of March 25, 2011, Phelps' Facebook status read: "Today is the day," and "Don't use your mind, use your nine."

Phelps, who was banned from the school grounds, entered the school and confronted C.J., saying he was "about to get (expletive) up."

C.J. said he didn't want to fight.

"Too bad," Phelps said.

He pulled out a handgun and shot C.J. twice in the stomach.

Phelps was convicted of attempted murder and sent to prison for 35 years.

Rebecca Jackson, C.J.'s mother, sued the Martinsville Metropolitan School District, claiming that it failed to protect her son.

Kelli Dearth also sued the district, claiming that her son, B.K. was hurt by the ejected shell casings. The trial court consolidated the lawsuits.

The school district filed for summary judgment, claiming immunity under the Indiana Tort Claims Act. The district also claimed that C.J. was "contributorily" negligent.

The trial court denied the district's motion, and the Indiana Court of Appeals agreed that the case should proceed to trial.

"We first note that C.J.'s complaint does not allege that the MWMS safety plan was negligently formulated. Rather, it claims that C.J.'s injury resulted from negligence implementation of the plan. We further note that even if C.J. did allege negligent formulation of the safety plan, MWMS's safety plan was not formulated in a way that would entitle the school district to immunity," Judge Paul D. Mathias wrote on the court's behalf.

The judge also rejected the school district's argument that Phelps' attack was not foreseeable.

He noted that one of C.J.'s classmates, C.H., submitted an affidavit she told Lipps that a shooting would take place, but that Lipps replied that she was "nothing but a liar...she said that in her whole school career she never saw a shooting and she never was going to see one."

Mathias also stated that one day before the shooting, another student had threatened to shoot a teacher.

"Given these facts, a jury could conclude that it is foreseeable that a shooting would occur at MWMS. The unstricken affidavit of C.H. also creates genuine issues of material facts as to whether the school district had specific warning about Phelps' attack," he wrote.

Finally, the issue of contributory negligence should also go to a jury, according to Mathias. The school district argued that C.J. should have walked away from Phelps and reported his threats to school officials.

"In a society where bullying is a pervasive and confusing problem, especially among young, school-age children, we question whether the issue of contributory negligence can properly be resolved as a matter of law, especially when, as here, a victim is not the initial aggressor in an altercation, but merely fails to meekly walk away from an attacker who is violently disposed, and especially where the victim appears to have been unaware that the attacker was armed," Mathias wrote.

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