This article is from Tennessee/Lookout
Should a school bus contractor that ignored 1,000 speeding complaints against a driver who went on to cause a crash that killed six students at a tiny Chattanooga Elementary School have known educators there might well suffer “emotional distress” as a result?
The Tennessee Court of Appeals says no.
Durham School Services knew driver Johnthony Walker had a history of speeding and reckless driving — including nodding off while driving and intentionally braking and swerving to cause children to “hit their heads” — but did nothing about it, according to court records.
In four months of his employment as a bus driver for Durham, Walker crashed three times. The third, in November 2016, proved fatal to six Woodmore Elementary School children and left dozens more students injured and maimed.
Durham, the court concedes, knew Walker’s bad driving could kill. The firm’s inaction in the face of thousands of complaints was “shocking” and “egregious,” the court notes.
But, the court concludes, educators just aren’t close enough to their students, even at a school with a population of 271, to count as “emotional distress” victims for which Durham should be financially liable.
“We have no difficulty concluding that Durham’s alleged conduct, or rather complete lack of action, was outrageous,” the opinion states. “Walker had only been employed by Durham as a bus driver for four months prior to the accident, but his tenure was littered with examples of unbelievably dangerous conduct about which Durham allegedly did nothing.
“(But) Durham’s decision to disregard the multiple and repeated warnings it received concerning Walker’s dangerous driving subjected the children on Walker’s bus, not (Woodmore educators), to a substantial and unjustifiable risk of serious physical and emotional harm,” the opinion continues.
It is the first ruling of its kind since an historic Tennessee Supreme Court decision in 2005 allowed children molested by an ex-priest to seek damages from the Roman Catholic Diocese of Nashville, which had kept his prior acts of child rape while a priest hidden from the public.
Watching students die
Woodmore Principal Brenda Cothran rushed to the scene of Walker’s fatal bus crash and saw her students—some already dead and others struggling to live—scattered on the ground. The appellate court opinion says she would later watch at least one student die at the hospital.
Teachers Stephanie Mohammed, Sherman Franklin and Cherri Schrick rushed to the hospital and stood by helplessly as their students fought for their lives. All four educators were called upon to help identify dead students. Woodmore secretary Alisa Bibbs fielded frightened calls from parents.
Durham, the opinion stated, promised to provide counseling to all five educators, as well as the school’s remaining staff and student body. It didn’t, the court wrote.
The firm had ignored complaints from the educators, the students and its own bus monitoring contractor about Walker’s reckless driving and behavior. At one point, the court noted, Durham had received 1,000 speeding complaints from the monitoring contractor but kept Walker employed and did nothing to confront him.
“In fact, Zonar (the monitoring contractor) notified Durham that … five days prior to the deadly crash, it had registered 25 separate speeding incidents, with Walker going more than twenty miles per hour over the speed limit in five of them,” the opinion stated.
So, the educators sued Durham for “reckless infliction of emotional distress,” arguing their suffering was “foreseeable” by the busing firm — just as Tennessee’s high court had concluded the Catholic Diocese should have known its child-molesting priest might continue his crimes after being quietly defrocked but unprosecuted.
In its 2005 ruling, the state Supreme Court set a test of sorts for lower courts to follow when examining whether a firm, an institution or a person can be held liable for ignoring warning signs of future crime, death or serious injury: Was the inaction or suppressed information “shocking to the conscience?”
The high court also opened the door for those indirectly impacted by that inaction or suppressed information to pursue damages, so long as the risk of emotional distress was predictable, but the court set no clear dividing line.
Court: Educator-student bond not enough
The lawsuit by the Woodmore educators was the first in the state to invoke that 2005 ruling. Hamilton County Circuit Court Judge John Bennett sided with the educators, ruling Durham should have known educators would suffer “emotional distress” from a fatal bus crash involving their students.
But the Court of Appeals has now disagreed, saying educators whose students die in a bus crash are no different than office workers who lose a colleague to a car crash.
“While it was foreseeable that Woodmore classmates, teachers, and staff members … as well as neighbors, acquaintances, and persons in multiple other categories would be impacted by the tragic losses from the bus crash, (the Woodmore educators do) not allege facts that would make (their) relationship with the students the type of close and intimate personal relationship required for recovery,” the court ruled. “(Their) relationship with the children is simply too attenuated.
“Indeed, almost every elementary school teacher and student could make the same allegation concerning students in their classrooms,” the court ruled. “Employees in an office with typical business hours could allege the same with respect to their co-workers.”
The court’s ruling effectively dismisses the lawsuit, and the educators will not be afforded a trial.
Walker, meanwhile, is in prison but not merely for the deaths he caused in the 2016 bus crash, records show.
He was convicted of criminally negligent homicide in the bus crash in March 2018. Hamilton County Criminal Court Judge Don Poole sentenced Walker, who was 25 at the time of the crash, to four years in prison but allowed him the rare legal privilege of remaining free while pursuing an appeal. It’s not clear why.
Walker moved to Nashville while the appeal was pending and was arrested in March 2019 for the statutory rape of a 14-year-old girl in whose home he was living. He lost his appeal in the bus crash a few months later.
Walker pleaded guilty to the statutory rape charges in September 2020 was sentenced to an additional six years for those crimes.
_ Jamie Satterfield