Oxford School Staff Sued Again Over Shooting – As Predicted; New Wrongful Death Action Is More Likely to Succeed – Expert
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Oxford School Sued Again Over Shooting
WASHINGTON, D.C. (January 29, 2022) - A second law suit growing out of the mass shooting at a high school in Oxford, Michigan, which killed four students has been filed against staff members at the school.
This new legal action has a much stronger chance of being successful, says public interest law professor John Banzhaf, an expert in torts (civil liability) who predicted and encouraged just such a law suit at the time of the shooting.
The first law suit, filed on behalf of two student survivors of the shooting, alleged that the staff members were negligent in not doing more to foresee and prevent the tragedy, and sought damages for the emotional distress the student plaintiffs allegedly suffered from the mass shooting.
The new law suit, filed by the parents of one of the students killed by the student shooter, as well as by several additional survivors, likewise charges that the staff members were responsible in part for the shooting because of their negligence.
The big and important difference is that Michigan law, like the law of most states, limits the situations in which people can be awarded damages when the negligence of a defendant caused physical harm or death to a third party, and the plaintiff allegedly suffered emotional distress as a result, notes Banzhaf.
Otherwise, he says, a single automobile accident in which only one person was injured or even killed could give rise to dozens of law suits, and ruinous financial liability. on behalf of many persons claiming to have suffered emotional distress from the event in situations where such claims might be difficult for a defendant to successfully refute.
These same severe limitations on the right to impose liability do not apply in cases of "Intentional Infliction of Emotional Distress"; the tort action which could be brought against the student shooter himself, says Banzhaf, who has taught Torts for over 50 years, and has been called a "King of Class Action Law Suits," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."
Bystander Liability
According to a very recent court decision applying Michigan law, the tort of "Negligent Infliction of Emotional Distress," sometimes also called "Bystander Liability," requires plaintiffs to prove all of the following:
"(1) serious injury threatened or inflicted on a person, not the plaintiff, of a nature to cause severe mental disturbance to the plaintiff,
(2) shock by the plaintiff from witnessing the event that results in the plaintiff’s actual physical harm,
(3) close relationship between the plaintiff and the injured person (parent, child, husband, or wife), and
(4) presence of the plaintiff at the location of the accident at the time the accident occurred or, if not presence, at least shock 'fairly contemporaneous' with the accident."
Thus the student plaintiffs who survived might have some difficultly proving, even by a preponderance of evidence standard, that they themselves suffered the requisite "actual physical harm," actually witnessed the shooting, and had a "close relationship" with one or more students who were shot, suggests Banzhaf.
Moreover, residents of the area serving as jurors might be reluctant to award damages which taxpayers might ultimately have to foot, especially when the shooter and his parents seem to be far more responsible for the injuries sustained, suggests the law professor.
The following is the legal analysis Professor Banzhaf published at the time of the shooting.
The grieving parents of the children killed or seriously injured should sue the Oxford High School if they want justice - or at least reasonable compensation - for Tuesday's mass shooting, Here's why.
It may not be possible for the prosecutors to meet the heavy burden of proving, beyond a reasonable doubt, that the shooter's parents created a situation where the risk of great bodily harm or death was very high, so a criminal conviction of the parents is far from certain.
While the parents' civil liability in a negligence action - which requires only proof that they did not act like reasonably prudent persons - seems very likely, it is equally likely that neither the parents, nor any liability insurance they might have purchased for themselves, could pay the many millions of dollars in damages which precedent clearly suggests is due to the parents.
For example, the insurance company for the Marysville School District in Washington paid $18 million after a substitute teacher was told of a threat but did not act to prevent the death of four students.
Broward County Mass Shooting
Similarly, Broward County, FL settled a mass shooting case at the Marjory Stoneman Douglas High School which killed 17 people and left the same number wounded for $25 million.
In sharp contrast, it should be much easier for plaintiffs in a civil negligence action to show, as they need to only by a mere preponderance of evidence, that the school was grossly negligent - by exhibiting willful blindness to deadly dangers, and an inexplicable unwillingness to take actions which would have saved lives - and is therefore civilly liable for the clearly foreseeable shootings.
On November 29th, a teacher noticed the alleged student shooter seeking information about purchasing bullets, and a school staff member were told by the boy that shooting was a family hobby. Based upon that information, and knowing about dozens of mass schools by students, the school communicated its concerns to the parents.
But when the parents declined to respond at all to the pressing and quite natural concerns about a student who came from a shooting household and was apparently attempting to purchase ammunition for a gun, the school was put on clear notice of a potential problem; one which clearly was very serious because it involved the very foreseeable risk of still another mass school shooting.
Nevertheless the school, as a result of these two events, did not notify any authorities, nor apparently take any other action which might have averted the tragedy. This, by itself, might well constitute negligence; but certainly not, by itself, gross negligence.
However, the next day a teacher saw drawings by the student which included images of a gun, a person who had been shot, a laughing emoji and the words, “Blood everywhere,” and, “The thoughts won’t stop. Help me.”
These are very clear indications of a mentally disturbed child with violent if not deadly intentions to use a gun, argues Banzhaf, who has turned over such documents to authorities even when the threats of violence were far less clear.
He says that these indications would have gravely concerned any adult familiar with mass school shootings by students, and even more so teachers and school authorities who have the training, expertise, and experience of working with many children of that age.
Despite such clear warnings, which created a danger so serious that the school said it would turn the matter over to authorities if the parents did not take appropriate action, the school did not inquire if the student had a gun with him, much less make any attempt to search his backpack.
Moreover, although the school thought the treat of violence was serious enough that it wanted the parents to leave with their son and have him receive mental treatment, the school permitted him not only to remain on campus, but apparently to even return to the classrooms without any additional supervision, thereby clearly endangering all the other students he would then have contact with.
If any school employee had asked the child or his parents about a gun, searched or even tried to search his backpack, and/or refused to allow him to return to school (at least unsupervised), after seeing the drawings, it is more likely than not (the legal standard of causation) that no students would have been killed or seriously injured, argues the law professor.
The totality of the circumstances arguably constitutes gross negligence by the school itself if not also by individual employees; which is apparently why both the county attorney and the state's attorney general have said they are considering bringing criminal charges against individual school employees.
But the law professor notes that, even if a jury may not be able to conclude beyond a reasonable doubt that any individual school employee was grossly negligent, any jury would be more likely to find the school - which is responsible for the negligence of all of its employees - grossly negligent for the actions and inactions of all of the employees together.
He notes that it's easier for a jury to make a finding of gross negligence when the consequence is that the school - or probably only the school's insurance company - will be required to compensate the parents for their losses than it is to make the same finding which would result in prison for a school employee.
It's also easier because in a civil case the jury need find gross negligence only by a mere preponderance of the evidence, whereas a determination of the same fact must be found beyond a reasonable doubt in a criminal case.
In any event, the filing of a civil negligence action against the school, even if it's far from a slam dunk, is very likely to pressure the school to offer a substantial settlement to avoid the possibility of a very high jury verdict, and the certainty of an embarrassing trial likely to have even more upsetting disclosures, says Banzhaf.
In short, because of clear and blatant mistakes by the school, four children were murdered, and many more were seriously injured.
Rather than leaving the parents with no recompense, and perhaps no justice from the criminal justice system if the parents are not found guilty, they should sue the entity whose gross negligence was the legal cause of the needless tragedy, suggests Banzhaf.
He notes that such a result would also deter other schools from being grossly negligent in not taking appropriate action when there are clear threats to other students.
