Student recovers against school district for its failure to protect her against attack

Law Reporter, Nov 2002 by Santoro, Elizabeth

Shelby v. Le Roy Cent. Sch. Dist., N.Y., Genessee County Sup. Ct., No. 4515 1, July 9, 2002.

Crystal Shelby, 16, was a junior at Le Roy High School in the rural town of Le Roy, New York. She was attacked and severely beaten by three other students at her locker. The three girls beat her on the head with a padlock and repeatedly struck her head against a wall. Only minutes before the attack, Crystal had told an assistant principal that the students had threatened her, but he told her to go to her homeroom.

Crystal sustained severe brain injuries that resulted in hydrocephalus, a condition that causes fluid to pool in the cranium and compress the brain, for which she has undergone six surgeries. Crystal has two shunts in her brain to drain fluid, and has persistent cognitive difficulties. Although she now attends college with special accommodations, maintaining an "A" average, she will never be able to work full time or realize her goal of a business management position.

Crystal's parents, Thomas and Bonita Shelby, retained ATIA member Terry D. Smith of Buffalo, New York. The Shelbys sued the assistant principal and the school district on their daughter's behalf, alleging negligence in failing to ensure her safety.

Plaintiffs contended there were several precautions the school could have taken to prevent the attack on Crystal, including keeping her in the principal's office until the girls who had threatened her could be found, escorting her to her class, or calling the hall monitors on Crystal's floor to alert them to the threat.

"One of the compelling aspects of the case was that it would have taken so little effort to have provided Crystal with absolute protection," Smith said. Smith and his cocounsel, Brian Mahoney, contended that the school had violated its own policy of having six teachers monitor the hall to enforce school rules. Several of the hall monitors were not at their posts at the time of the attack.

Defendants maintained that although Crystal had spoken to the assistant principal, she had not told him about the girls' threats to injure her.

Webster Pilcher, a neurosurgeon from Rochester, New York, testified that Crystal will require future surgeries, which will inevitably lead to additional brain damage, and that because the symptoms of shunt failure are subtle, she will need close supervision for the rest of her life.

"As a practical matter, she can never live alone," Smith said. "She needs someone to assess her on a daily basis to make sure she is cognitively alert."

In a bifurcated trial, a jury found the district and the assistant principal jointly liable. It made a special finding that the assistant principal acted with reckless disregard for Crystal's safety. Consequently, he could not claim the limited liability for her noneconomic damages that he might otherwise enjoy under New York law.

A second jury awarded plaintiffs $11.4 million, $200,000 of which went to Crystal's parents for the value of nursing services they rendered to her between the attack and her 21st birthday.

The school district plans to appeal the amount of the award.

Plaintiffs' experts were Webster Pitcher, neurosurgery; Donna Palumbo, neuropsychology; and Susan Keating, nursing services, all of Rochester; Andrew Hilburger, neurology; Dorothy Rupley, chiropractic care; and Andrew Siegel, ophthalmology, all of Batavia, New York; and Patrick Hartwick, vocational assessment; Ronald Reiber, economics; and Krishnan Kartha, neuroradiology, all of Buffalo. Defendant's expert witnesses were Peter Loehr, school security, Buffalo; and Robert Knapp, neurology, Rochester.

Smith hopes the case will signal school districts about student safety.

"I think they will certainly pay more attention to the disciplinary records of their students," he said, noting that all three of the assailants had lengthy disciplinary records.

"If they are going to keep disciplinary records, which of course they should, they ought to be aware of what is in them."