May 08 2013, 8:10 am
FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES RICHMOND COMMUNITY SCHOOL GARY P. PRICE CORPORATION ET AL.: Indianapolis, Indiana RICK D. MEILS JOHN W. MERVILDE Meils Thompson Dietz & Berish Indianapolis, Indiana
ATTORNEY FOR APPELLEE INDIANA INSURANCE COMPANY:
JAMES S. STEPHENSON Stephenson Morow & Semler Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MICHAEL E. LYONS, Individually; ) DENITA L. LYONS, Individually; ) MICHAEL E. LYONS and DENITA L. ) LYONS, as Co-personal Representatives ) of the Estate of Megan Renee Lyons, Deceased, ) ) Appellants/Plaintiffs, ) ) vs. ) No. 89A04-1204-PL-159 ) RICHMOND COMMUNITY SCHOOL ) CORPORATION d/b/a RICHMOND ) HIGH SCHOOL; JOE SPICER; ) JEFFREY THORNE; and MAGGIE LaRUE, ) in their individual and official capacities, ) ) Appellees/Defendants, ) ) INDIANA INSURANCE COMPANY, ) ) Appellee/Non-Party-Respondent. )
APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Peter D. Haviza, Special Judge Cause No. 89D01-1006-PL-11
May 8, 2013
OPINION - FOR PUBLICATION
BRADFORD, Judge
Appellees/Plaintiffs Michael and Denita Lyons appeal the trial court’s grant of
summary judgment in favor of Appellees/Defendants Richmond Community School
Corporation and certain school administrators (“RCSC”). The Lyonses’ daughter, Megan,
was a Richmond High School student with Down syndrome, a medical condition that
rendered her “Severely Mentally Disabled.” Tragically, Megan choked on a sandwich in the
school cafeteria, was deprived of oxygen for fifteen to twenty minutes, and ultimately died at
a hospital two days later. The Lyonses sued RCSC under the Indiana Tort Claims Act
(“ITCA”) and 42 U.S.C. § 1983, alleging RCSC’s acts or omissions caused Megan’s death.
The trial court granted RCSC summary judgment on the issues of compliance with the
ITCA’s notice provision and contributory negligence as well as on the Lyonses’ § 1983
claims.
2 We conclude that summary judgment was inappropriate on the Lyonses’ ITCA claims
by virtue of the discovery rule: when the Lyonses’ cause of action accrued remains a
question of fact for the jury to decide. The issue of contributory negligence also should not
have been judged as a matter of law. We agree with the trial court, however, that there
remains no genuine issue of material fact as to the Lyonses’ claims of fraudulent
concealment and substantial compliance with the ITCA’s notice provision; summary
judgment would have been proper on these grounds. We further conclude that summary
judgment was appropriate on the Lyonses’ § 1983 claims: RCSC did not owe Megan a duty
of protection under the special relationship or state-created danger doctrine, and it did not
deprive the Lyonses of their due process right of judicial access.
The trial court also granted a motion to quash the Lyonses’ third-party discovery
requests against Appellee/Non-Party-Respondent Indiana Insurance, RCSC’s insurer, and
subsequently denied the Lyonses’ motion for leave to add Indiana Insurance as a defendant.
We conclude that the Lyonses cannot assert a third-party spoliation claim against Indiana
Insurance, and therefore, that the trial court did not abuse its discretion in denying the
Lyonses’ motions. The judgment of the trial court is affirmed in part and reversed in part.
FACTS AND PROCEDURAL HISTORY
Megan was a seventeen-year-old Richmond High School (“RHS”) student with Down
syndrome. This medical condition rendered Megan “Severely Mentally Disabled,” and as a
consequence, she would swallow food without chewing sufficiently and sometimes take
successive bites before swallowing. The record reveals numerous factual inconsistencies
3 concerning Megan’s supervision and dining needs and RCSC’s plan for meeting those needs;
however, the evidence most favorable to the Lyonses indicates that RCSC was aware of
Megan’s eating difficulties and had implemented a plan to accommodate them. This
included a policy of cutting Megan’s food into pieces and the assignment of a one-on-one
paraprofessional to supervise and assist Megan at all times. Tragically, on January 7, 2009,
Megan choked on a sandwich in the RHS cafeteria and died from the resulting oxygen
deprivation two days later.
The details of Megan’s choking incident are also highly contested. But when viewed
in favor of the Lyonses, the evidence shows that RHS had three paraprofessionals in the
cafeteria on the day Megan choked: Vickie Lett, Cindy DeLucio, and Bill Ryan. Lett had
served as Megan’s one-on-one paraprofessional for at least two years prior to Megan’s death;
however, on that day, DeLucio was assigned to Megan during lunch. DeLucio had never
before accompanied Megan to lunch, was not aware of Megan’s special lunchtime needs, and
did not cut Megan’s sandwich into pieces as required by Megan’s dining plan.
RHS Assistant Principals Jeff Thorne, Joe Spicer, Rusty Hensley, and Rachel
Etherington were also on duty in or near the cafeteria on the day Megan choked. When
DeLucio realized that Megan was choking, she twice tried to get Assistant Principal Spicer’s
attention from the hallway outside the cafeteria. Having no success, DeLucio instead
summoned Lett from a table ten feet away. Lett proceeded to smack Megan on her back in
an attempt to dislodge the food in Megan’s throat, but Megan continued to choke. Lett told
DeLucio to get help, prompting DeLucio to retrieve Assistant Principal Thorne from nearby.
4 Like Lett, Thorne proceeded to tap Megan on her back several times to no avail. DeLucio
next approached Assistant Principal Spicer and told him that he was needed in the cafeteria.
She did not tell Spicer that Megan was choking. Spicer went to Megan’s side and assisted
Thorne in attending to Megan.
Three or four minutes after Megan began choking, Assistant Principal Hensley entered
the cafeteria, saw that Megan was choking, and called for a school nurse. Nurse Sharon
Provance received the call but was informed only that “Mr. Hensley needs you.” Appellants’
App. p. 683. RHS has a policy of not relaying detailed emergency information over the
radio. As a result, Nurse Provance believed there had been a simple fight and did not rush to
the cafeteria. She instead packed up her first aid kit, prepared a bag of ice, and walked.
Nurse Provance arrived at the cafeteria ten minutes after she was called.
Upon arriving on the scene, Nurse Provance quickly assessed Megan’s condition and
instructed Assistant Principal Spicer to call 911. At this point, approximately thirteen
minutes had passed since Megan began choking. Nurse Provance performed back blows,
finger sweeps, and the Heimlich maneuver on Megan, efforts that produced a tennis ball-
sized clump of food from Megan’s mouth and esophagus. Megan’s airway, however,
remained blocked, and, by the time a second RHS nurse, Deborah Stracener, arrived on the
scene, Megan’s heart had stopped. Nurse Stracener joined Nurse Provance in performing
CPR on Megan. Three minutes after 911 was called, EMTs arrived and intubated Megan to
restore her airway. She was taken to Reid Hospital in Richmond and then transported to
Riley Children’s Hospital in Indianapolis, where she died on January 10, 2009.
5 Megan was without oxygen for approximately fifteen to twenty minutes. RHS did not
have a policy or procedure in place for responding to choking emergencies, and it did not
provide its paraprofessionals with training in basic first aid, CPR, or the Heimlich maneuver.
None of the individuals that first responded to Megan’s aid performed the Heimlich
maneuver or called 911.
RHS cafeteria worker Rhonda Swearingen witnessed Megan’s entire choking incident.
Food Service Coordinator Margaret LaRue, however, was off-campus at the time, returning
only in time to see the EMTs removing Megan from the cafeteria. LaRue has no personal
knowledge of what happened in the cafeteria that day, and Swearingen never told anyone
with RCSC what she had seen.
Soon after the incident, Principal Barbara Bergdoll and LaRue held a meeting with
Swearingen and the school’s three other cafeteria workers to discuss HIPAA privacy laws
and RCSC confidentiality policies. Twice that year, LaRue had conducted similar meetings
with her staff. LaRue told the workers they would be fired on the spot if they spoke about
Megan’s choking incident outside of RHS. LaRue pointed at Swearingen when she made
this statement.
Principal Bergdoll held a second meeting on the afternoon of Megan’s choking
incident, at which school administrators “did a recap of what happened in the cafeteria” that
day, Appellants’ App. p. 717, and “discussed what could have been done better” with regard
to communication. Appellants’ App. p 674. Assistant Principal Hensley was in attendance.
Also “brought up” at the meeting was the fact that RHS operated a video surveillance system
6 that covered the area in the cafeteria where Megan choked. The surveillance footage is
digitally preserved on a hard-drive for approximately ninety days.
Shortly after Megan choked, RCSC reported the incident to Indiana Insurance. On
February 25, 2010, Indiana Insurance conducted an investigation of the incident “oriented
toward the prospect of litigation.” Appellants’ App. p. 928. This included on-site interviews
with certain RHS personnel. The investigation did not reveal to Indiana Insurance the
existence of RHS’s video surveillance system or its temporarily preserved footage. The
video expired without ever having been seen by Indiana Insurance, RCSC, or the Lyonses.
A day or two after Megan’s choking incident, Principal Bergdoll and Assistant
Principal Hensley visited the Lyonses at Riley Chidren’s Hospital. During the visit, Mrs.
Lyons repeatedly asked Hensley how long Megan had been without oxygen. Hensely assured
the Lyonses that it had been a “very short period of time,” but “no one could ever tell [the
Lyonses] what that meant.” Appellants’ App. p. 19. Similarly, the only information
Principal Bergdoll relayed to the Lyonses during the visit was that Megan had choked.
Bergdoll later admitted, “[T]hat’s the best that we could come up with because I don’t think
anybody really knew, still don’t know to my knowledge.” Appellant’s App. p. 649.
“Two or three times” after Megan’s death, Mrs. Lyons requested to meet with
Assistant Principal Hensley to discuss Megan’s choking incident. Appellants’ App. p. 820.
Hensley’s response each time was, “We’ll get together.” Appellants’ App. p. 787. At least
one of these requests was made prior to RHS’s graduation ceremony on June 14, 2009. On
this occasion, Hensley asked that the Lyonses contact him after graduation. The Lyonses did
7 not follow-up with Hensley.
On October 1, 2009, Swearingen called Mr. Lyons and informed him generally that
“things were not done properly” with regard to RCSC’s response to Megan’s choking
incident. Appellants’ App. p. 788. Neither party to this five-minute conversation recalls
specifically what was said, only that “the general conversation [had] to do with a time and
response situation.” Appellants’ App. p. 315.
On January 11, 2010, the Lyonses filed a notice of tort claim with RCSC. The
Lyonses filed their complaint for damages on June 8, 2010, alleging negligence, wrongful
death, and civil rights violations. On May 6, 2011, the Lyonses sought third-party discovery
from Indiana Insurance. Indiana Insurance moved to quash the request on May 18, 2011. On
July 22, 2011, RCSC moved for summary judgment on all claims.
On September 20, 2012, the trial court granted Indiana Insurance’s motion to quash,
holding that Indiana Insurance owed no duty to the Lyonses to direct RCSC to preserve a
copy of the video surveillance. On October 6, 2011, the Lyonses cross-moved for summary
judgment on the issue of compliance with the ITCA’s notice provision. On October 25,
2011, the Lyonses moved for leave to amend their complaint to add Indiana Insurance as
defendant based on its failure to conduct a reasonable claims investigation.
On December 19, 2011, the trial court held a hearing on all pending motions. On
March 22, 2012, the trial court issued an order denying the Lyonses’ motion for summary
judgment and granting summary judgment in favor of RCSC. On the same day, the trial
court also denied the Lyonses’ motion for leave to add Indiana Insurance as a defendant.
8 DISCUSSION AND DECISION
“In reviewing a motion for summary judgment, this court applies the same standard as
the trial court.” Daugherty v. Dearborn Cnty., 827 N.E.2d 34, 35 (Ind. Ct. App. 2005). “We
must determine whether there is a genuine issue of material fact, and whether the law has
been correctly applied….” Id. “Neither the trial court, nor the reviewing court, may look
beyond the evidence specifically designated to the trial court.” Id. “A trial court’s grant of
summary judgment is clothed with the presumption of validity, and the appellant bears the
burden of demonstrating that the trial court erred.” Id.
I. Indiana Tort Claims Act
The Lyonses argue that the trial court erred in granting RCSC summary judgment on
the issue of compliance with the notice provision of the Indiana Tort Claims Act. The ITCA
bars a claim against a political subdivision unless notice of the claim is given to the
governing body within 180 days “after the loss occurs.” Ind. Code § 34-13-3-8(a). It is
undisputed that the Lyonses did not notify RCSC of its claims within 180 days of Megan’s
death. Rather, the Lyonses assert three alternative theories of compliance with the ITCA’s
notice provision: the discovery rule, fraudulent concealment, and substantial compliance.
A. Discovery Rule
The Lyonses claim that their notice-of-claim was not untimely by virtue of the
discovery rule. As stated above, the ITCA requires notice within 180 days “after the loss
occurs.” Ind. Code § 34-13-3-8(a). Under Indiana’s discovery rule, a loss is said to occur
“when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that
9 an injury had been sustained as a result of the tortious act of another.’” Reed v. City of
Evansville, 956 N.E.2d 684, 691 (Ind. Ct. App. 2011), trans. denied (quoting Wehling v.
Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992)).
The discovery rule “has both an injury and a causation prong.” Evenson v. Osmose
Wood Preserving Co. of Am., Inc., 899 F.2d 701, 703 (7th Cir. 1990) (applying Indiana law).
Here, it is not disputed that the Lyonses knew of Megan’s death well before the expiration of
the ITCA’s 180-day limitation period. We focus, therefore, on the causation prong of the
discovery rule. In that regard, the Indiana Supreme Court has clarified that
a claim subject to the discovery rule accrues when a plaintiff is informed of a “reasonable possibility, if not a probability” that an injury was sustained as a result of the tortious act of another, and that a person’s “mere suspicion or speculation” as to causation of an injury is insufficient to trigger accrual.
Reed, 956 N.E.2d at 691 (quoting Degussa Corp. v. Mullens, 744 N.E.2d 407, 411 (Ind.
2001)). The question of when a plaintiff discovered facts which, in the exercise of ordinary
diligence, should lead to the discovery of a reasonable possibility of causation is often a
question of fact. Degussa, 744 N.E.2d at 410-11.
The Lyonses contend that they did not learn of a reasonable possibility that a causal
link existed between RCSC’s response to Megan’s choking incident and the oxygen
deprivation from which Megan ultimately died until October 1, 2009, when Swearingen
informed Mr. Lyons that “things were not done properly,” Appellants’ App. p. 788,
particularly with regard to RCSC’s “time and response.” Appellants’ App. p. 315. RCSC
counters that, through ordinary diligence, the Lyonses should have known of this possibility
on January 10, 2009, when they learned that Megan had died from oxygen deprivation as a
10 result of her choking while in the care of RHS.
“[T]he exercise of [ordinary] diligence means simply that an injured party must act
with some promptness where the acts and circumstances of an injury would put a person of
common knowledge and experience on notice that some right of his has been invaded or that
some claim against another party might exist.” Perryman v. Motorist Mut. Ins. Co., 846
N.E.2d 683, 689 (Ind. Ct. App. 2006) (emphasis added). The constructive knowledge that
RCSC seeks to impose on the Lyonses as of January 10, 2009, does not rise to this level.
Such a conclusion relies on “mere suspicion or speculation” that RCSC somehow caused or
exacerbated Megan’s oxygen deprivation. Degussa Corp., 744 N.E.2d at 411.
We conclude that the Lyonses must have possessed at least a basic knowledge of how
RCSC acted in response to Megan’s choking incident in order for there to be a reasonable
possibility of a causal link between that response and Megan’s death. As it favors the
Lyonses, the evidence shows that the extent of Megan’s oxygen deprivation is directly related
to RCSC’s response to it. But at the time of Megan’s death, the Lyonses did not know how
long Megan was without oxygen or any details of how RCSC responded to the emergency.
Moreover, when the Lyonses requested this information, Assistant Principal Hensley assured
them that Megan had been without oxygen for a “very short period of time” and put off
meeting with them to discuss Megan’s choking incident.
The proper question, therefore, is: in the exercise of ordinary diligence, could the
Lyonses have learned of RCSC’s alleged acts or omissions before July 15, 2009, which was
180 days before the Lyonses filed notice of their claims on January 11, 2010? This question
11 is not resolved by the designated evidence, and therefore, it remains a genuine issue of
material fact for the jury’s determination. Summary judgment on the Lyonses’ ITCA claims
was inappropriate.
B. Fraudulent Concealment
The Lyonses claim that their notice-of-claim was not untimely because the ITCA’s
180-day period was tolled by virtue of RCSC’s fraudulent concealment. “Fraudulent
concealment is an equitable doctrine that operates to estop a defendant from asserting the
statute of limitations as a bar to a claim whenever the defendant, by his own actions, prevents
the plaintiff from obtaining the knowledge necessary to pursue a claim.” Johnson v. Hoosier
Enters. III, Inc., 815 N.E.2d 542, 549 (Ind. Ct. App. 2004) (quoting Doe v. Shults–Lewis
Child & Family Servs., 718 N.E.2d 738, 744 (Ind. 1999)). The doctrine tolls the statute of
limitations when the defendant “has either by deception or by a violation of duty, concealed
from the plaintiff material facts thereby preventing the plaintiff from discovering a potential
cause of action.” Doe, 718 N.E.2d at 744-45 (quoting Fager v. Hundt, 610 N.E.2d 246, 251
(Ind. 1993)). “While the fraudulent concealment exception is an equitable doctrine, the
relevant facts may be determined by a jury in the event of trial.” Fager, 610 N.E.2d at 253.
1. Active Concealment
The Lyonses claim that RCSC actively concealed its tortious conduct from the
Lyonses through the acts of LaRue and Assistant Principal Hensley. The Lyonses, however,
designate no evidence from which a finder of fact might reasonably infer that either of these
employees intended to conceal material facts from the Lyonses. “[A]ffirmative acts of
12 concealment must be calculated to mislead and hinder a plaintiff from obtaining information
by the use of ordinary diligence, or to prevent inquiry or elude investigation.” Ludwig v.
Ford Motor Co., 510 N.E.2d 691, 697 (Ind. Ct. App. 1987). “There must be some trick or
contrivance intended by the defrauder to exclude suspicion and prevent inquiry.” Id.
The Lyonses contend that LaRue concealed material facts when, during a meeting
with the school’s cafeteria workers immediately after Megan’s choking incident, LaRue
threatened to fire the workers, including Swearingen, if they discussed the incident outside of
RHS. Allegedly, this threat prevented Swearingen from disclosing RCSC’s tortious conduct
until nearly one year later, when she contacted Mr. Lyons. The undisputed evidence,
however, shows that the purpose of LaRue’s meeting was to discuss HIPAA privacy laws
and RCSC confidentiality policies. Twice that school year, LaRue had conducted similar
meetings, and Swearingen admitted that LaRue had informed her of these policies before.
Further, the record reveals that LaRue had no personal knowledge of what happened in the
cafeteria that day and that she was unaware that Swearingen had witnessed the incident. In
fact, Swearingen testified that she never told anyone at RCSC what she had seen.
Moreover, the Lyonses make no showing that they relied on LaRue’s statements in
failing to discover a cause of action. Active fraudulent concealment requires a plaintiff to
have “reasonably relied” on the defendant’s deception in its hindrance of the plaintiff’s
discovery of a cause of action. Nelson v. Sandoz Pharm. Corp., 288 F.3d 954, 968 (7th Cir.
2002) (citing Doe v. United Methodist Church, 673 N.E.2d 839, 845 (Ind. Ct. App. 1996));
see Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005). And “[m]ere silence on
13 the part of a defrauder will not constitute concealment absent a duty to speak.” Ludwig, 510
N.E.2d at 697. Here, there is no evidence that the Lyonses had knowledge of LaRue’s
meeting with the cafeteria workers or that she threatened to fire the workers if they spoke
about Megan’s choking incident outside of RHS. The Lyonses also never inquired to LaRue,
Swearingen, or any other cafeteria worker for details about Megan’s death. Active
fraudulent concealment, therefore, cannot be found.
The Lyonses contend that Assistant Principal Hensley concealed material facts when,
at the hospital following Megan’s choking incident, he assured the Lyonses that Megan had
been without oxygen for only “a short period of time.” Appellants’ App. p. 817. The
Lyonses allege that Hensley knew this not to be true because he had attended a meeting on
the afternoon of Megan’s choking incident, at which school administrators “did a recap of
what happened in the cafeteria” that day, Appellants’ App. p. 717, and “discussed what could
have been done better.” Appellants’ App. p. 674. From this, the Lyonses infer that Hensley
knew Megan had been without oxygen for more than a “short period,” yet made this
statement to the Lyonses to deliberately mislead them into believing she had not. We
conclude that a jury could not reasonably make this inferential leap.
The subjectivity in and vagueness of Hensley’s “very short period of time” statement
make it nearly impossible to find fraudulent intent. Short of an admission by Hensley that he
actually considered Megan to have been without oxygen for “a long period of time,” a jury
could only infer that Hensley should have known that his statement was misleading. Such a
finding might support negligence, but it would not establish the intentional misconduct
14 required by active fraudulent concealment. See Hughes v. Glaese, 659 N.E.2d 516, 521-22
(Ind. 1995) (finding doctor’s affirmation to patient that chest X-rays showed everything to be
“okay” insufficient to support active fraudulent concealment without a showing that doctor
had actual knowledge that X-ray findings showed signs of disease).
2. Passive Concealment
The Lyonses also assert claims that RCSC passively concealed key facts by failing to
affirmatively disclose details of Megan’s choking incident to the Lyonses. “[W]here a
fiduciary or confidential relationship exists … there exists a duty to disclose material
information between the parties and a failure to do so results in concealment.” Id. at 520.
The Lyonses’ claims are creatively based on the special school-parent relationships created
by the in loco parentis doctrine, the Federal Education & Privacy Rights Act, and public
policy. None of these theories, however, has been held to establish a school’s obligation to
affirmatively disclose student information to parents. Finding that the Lyonses’ assertion
requires a substantial expansion of the law, we decline to recognize such a duty at this time.1
C. Substantial Compliance
Assuming the Lyonses’ cause of action accrued on the day Megan died, the Lyonses
claim that substantial compliance excuses their untimely notice-of-claim. It is well settled
that notice is sufficient if it substantially complies with the content requirements of the ITCA.
Boushehry v. City of Indpls., 931 N.E.2d 892, 895 (Ind. Ct. App. 2010) (citing Collier v.
Prater, 544 N.E.2d 497, 499 (Ind. 1989)). The ITCA requires that notice “describe in a short
1 While we find active and passive concealment cannot exist under these facts, the actions or inactions
15 and plain statement the facts on which the claim is based” and “include the circumstances
which brought about the loss, the extent of the loss, the time and place the loss occurred, the
names of all persons involved if known, the amount of the damages sought, and the residence
of the person making the claim….” Ind. Code § 34-13-3-10. The purpose of these
requirements is “to inform a political subdivision with reasonable certainty of the accident
and surrounding circumstances so that the political subdivision may investigate, determine
liability and prepare a defense to the claim.” Daugherty, 827 N.E.2d at 36. Substantial
compliance with the notice requirements of the ITCA is a question of law. Rudnick v. N. Ind.
Commuter Transp. Dist., 892 N.E.2d 204, 207 (Ind. Ct. App. 2008).
The Lyonses contend they substantially complied with the ITCA notice provision
because RCSC had full knowledge of the facts and circumstances surrounding Megan’s death
and promptly reported the incident to its insurer, who conducted an investigation of the
incident “oriented toward the prospect of litigation.” Appellants’ App. p. 928. Our courts,
however, have consistently held that actual knowledge of a claimant’s injury, even when
coupled with an investigation of the incident, “will not suffice to prove substantial
compliance.” Collier, 544 N.E.2d at 499 (citing Geyer v. Logansport, 370 N.E.2 333, 336
(Ind. 1977)); accord Brown v. Alexander, 876 N.E.2d 376, 383 (Ind. Ct. App. 2007); Fowler
v. Brewer, 773 N.E.2d 858, 865 (Ind. Ct. App. 2002). The municipality must be “advise[d]
of the injured party’s intent to assert a tort claim.” Bienz v. Bloom, 674 N.E.2d 998, 1005
(Ind. Ct. App. 1996) (citing Collier, 544 N.E.2d at 499); accord McConnell v. Porter
of RCSC, as argued by the Lyonses, remain relevant for a factfinder’s determination of the discovery rule.
16 Memorial Hosp. 698 N.E.2d 865, 868 (Ind. Ct. App. 1998). “[T]he statutory purpose of
providing opportunity to investigate is not fully realized except when notice is had in the
context that one is claiming municipal liability for injury.” Batchelder v. Haxby, 337 N.E.2d
887, 890 (Ind. Ct. App. 1975); accord Collier, 544 N.E.2d at 499 (“Because the city was not
apprised of the claimant’s intention to bring suit, any investigation it conducted was
inadequate since it was undertaken without an eye firmly cast toward potential liability and
litigation.”). As such, substantial compliance cannot exist “when the claimant took no steps
whatsoever to comply with the notice statute.” Brown, 876 N.E.2d at 383. Because the
Lyonses filed no notice-of-claim—defective or otherwise—within 180 days of Megan’s
death, their reliance on substantial compliance is without merit.2
II. Contributory Negligence
The Lyonses argue that the trial court erred in granting RCSC summary judgment on
the issue of contributory negligence. “As a defense to a negligence claim, contributory
negligence is generally a question of fact. It can be a question of law if the court can say that
no reasonable person would have acted as the plaintiff did under the circumstances.” N. Ind.
Pub. Serv. Co. v. E. Chicago Sanitary Dist., 590 N.E.2d 1067, 1075 (Ind. Ct. App. 1992).
Below RCSC asserted that, if it were liable for failing to cut Megan’s sandwich into pieces
on the day that Megan choked, the Lyonses were contributorily at fault for not informing
RHS or its paraprofessionals that Megan’s sandwich needed to be cut. (Appellee’s Br. 43).
2 We note, without speculating on the reason or the outcome, that our supreme court has recently granted transfer in the case of Schoettmer v. Wright, 971 N.E.2d 118 (Ind. Ct. App. 2012), in which we held that a plaintiff’s settlement discussions with a government entity’s insurer were not sufficient to constitute
17 Contributory negligence as a matter of law is only appropriate where the plaintiff’s
negligence is so “clear and palpable that no verdict could make it otherwise.” Id. (quoting
Meadowlark Farms v. Warken, 176 Ind. App. 437, 446, 376 N.E.2d 122, 131–32 (1978)).
Finding that this strict standard has not been met, we conclude that the trial court erred in
granting summary judgment on this issue.
III. Section 1983 Claims
The Lyonses argue that the trial court erred in granting RCSC summary judgment on
the issue of RCSC’s liability under 42 U.S.C. § 1983.3 This Code section establishes liability
against persons who, under color of state law, deprive others of their constitutional rights. 42
U.S.C. § 1983. In order to succeed on a § 1983 claim, the Lyonses must show that (1) RCSC
deprived Megan or the Lyonses of a right secured by the Constitution and laws of the United
States, and (2) that it acted under color of state law. Windle v. City of Marion, Ind., 321 F.3d
658, 661 (7th Cir. 2003). The latter requirement is not at issue in this case.
The Lyonses claim that RCSC owed Megan a constitutional duty of protection and
that certain school administrators deprived Megan of her Fourteenth Amendment right to life
by responding to Megan’s emergency with deliberate indifference. The Lyonses also argue
that RCSC is municipally liable because it maintained express and implied unconstitutional
policies that caused Megan’s death. In addition, the Lyonses argue that RCSC violated their
due process right of access to the courts by acting to cover up its tortious conduct.
substantial compliance with the ITCA when the plaintiff did not also communicate—in writing or otherwise— his intended claim to the government entity. 3 Failure to comply with ITCA’s notice provision is not a bar to asserting claims under § 1983.
18 A. Failure to Protect
The Lyonses claim that RCSC owed Megan a constitutional duty of protection. Due
process “generally does not impose upon the state a duty to protect individuals from harm by
private actors.” King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817 (7th Cir.
2007) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96
(1989)). There are, however, two exceptions to this general rule. “[T]he Constitution
imposes a duty upon the state to protect individuals with whom it has a ‘special relationship’
by virtue of the state’s custody over the individual.” Id. (citing DeShaney, 489 U.S. at 199-
200). And “the substantive component of the Due Process Clause imposes upon the state a
duty to protect individuals against dangers the state itself creates….” Id. (citing Monfils v.
Taylor, 165 F.3d 511, 516 (7th Cir. 1998)).
1. Special Relationship
The Lyonses claim that Megan’s disabilities and RCSC’s implementation of a plan to
accommodate them created a special relationship between RCSC and Megan, giving rise to a
constitutional duty on the part of RCSC to protect Megan from the consequences of her
disabilities while at school. An affirmative duty to protect an individual arises “where the
state has exercised its power so as to render [that] individual unable to care for himself or
herself.” J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990) (citing
DeShaney, 489 U.S. at 200). “But beyond the case of incarcerated prisoners and
involuntarily committed mental patients, the Supreme Court has never recognized such a
Werblo v. Bd. of Trustees of Hamilton Heights Sch. Corp., 537 N.E.2d 499, 501-02 (Ind. 1989).
19 duty.”4 Id. Moreover, “[t]he affirmative duty to protect arises not from the State’s
knowledge of the individual’s predicament or from its expressions of intent to help him, but
from the limitation which it has imposed on his freedom to act on his own behalf.”
Deshaney, 489 U.S. at 200. “Inaction by the state in the face of a known danger is not
enough to trigger the obligation….” Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993)
(discussing Deshaney, 489 U.S. at 200). Megan’s disabilities were not imposed on her by
RCSC; therefore, no special relationship existed.
2. State-Created Danger
The Lyonses claim that RCSC had a constitutional duty to protect Megan because it
created the danger that caused her death. Specifically, the Lyonses contend that RCSC
endangered Megan by: (1) negligently hiring DeLucio; (2) failing to train its
paraprofessionals in the Heimlich maneuver, CPR, or basic first aid; (3) failing to adequately
supervise Megan while eating; (4) failing to adequately respond to Megan’s emergency; (5)
failing to provide nurses with critical information; and (6) failing to promptly call 911.
The state-created danger doctrine requires that danger result from some affirmative act
of the state that shocks the conscience. King ex rel. King, 496 F.3d at 817-18. By logical
definition, however, inaction is not an affirmative position. Windle, 321 F.3d at 662 n.2.
4 Although not argued by the Lyonses, school children have been commonly analogized to prisoners and mental patients under the special relationship doctrine because school attendance is compulsory and because, to some extent, school authorities act in loco parentis. But “[t]he circuits that have confronted this issue have uniformly rejected this argument, holding that school children are not captives of the school authorities and the basic responsibility for their care remains with their parents.” Hasenfus v. LaJeunesse, 175 F.3d 68, 71 (1st Cir. 1999) (citing J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272-73 (7th Cir. 1990) (additional citations omitted)).
20 The term “affirmative act” suggests a willful deviation from the status quo. Thus an affirmative act will have as a counterpoint a non-affirmative position. Typically, this involves inaction. Here Appellant posits a situation where not acting was an affirmative act and therefore the [Appellee was] faced with the choice between affirmatively choosing to do nothing and affirmatively doing something. Under this scenario there is no non-affirmative position for the Appellee to have taken. This is simply illogical.
Id. Therefore, the Lyonses’ asserted failure-based acts cannot constitute state-created
dangers. The Lyonses’ remaining allegation, negligent hiring, fails because it is not
conscience shocking. To shock the conscience, “conduct must be more culpable than mere
negligence, which is ‘categorically beneath the threshold of constitutional due process.’”
King ex rel. King, 496 F.3d at 818 (quoting Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).
B. Municipal Liability
The Lyonses claim municipal liability against RCSC by challenging the
constitutionality of both its express policy not to tell nurses detailed emergency information
over the radio and its customs of failing to train its paraprofessionals in the Heimlich
maneuver, CRP, and basic first aid, and of failing to implement a school choking policy. See
City of Canton, Ohio v. Harris, 489 U.S.378 (1989). But a plaintiff must prove that
individual state actors are liable on an underlying substantive claim in order to recover
damages from a municipality for its unconstitutional policies or customs. See City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986); see also Windle, 321 F.3d at 663. Since the
Lyonses failed to assert a viable claim against any RCSC administrator under the failure to
protect theories discussed above, their claims of municipal liability also must fail.
C. Judicial Access
21 In addition to their claims on behalf of Megan, Mr. and Mrs. Lyons each assert their
own § 1983 claims, alleging that RCSC interfered with their due process right of access to
the courts. “The right of individuals to pursue legal redress for claims which have a
reasonable basis in law and fact is protected by the First and Fourteenth Amendments.” Love
v. Bolinger, 927 F. Supp. 1131, 1137 (S.D. Ind. 1996). “A corollary of this right is that
efforts by state actors to impede an individual’s access to courts ... may provide the basis for
a constitutional claim under 42 U.S.C. § 1983.” Id. An accidental, inadvertent, or otherwise
unintentional deprivation of access does not rise to the level of a due process violation under
§ 1983. Guffey v. Trago, 572 F. Supp. 782, 786 (N.D. Ind. 1983); see Marsh v. Kirschner, 31
F. Supp. 2d 79, 81 (D. Conn. 1998) (dismissing plaintiff’s § 1983 claim for failure to allege
that defendant intentionally interfered with plaintiff’s right of access) (citing Barrett v. U.S.,
689 F.2d 324, 331-32 (2d Cir.1982)).
The Lyonses contend RCSC interfered with their right to judicial access by: (1)
LaRue threatening to fire Swearingen; (2) Hensley assuring the Lyonses that Megan had been
without oxygen for only “a very short period of time”; (3) Hensley failing to meet with the
Lyonses; (4) RCSC failing to preserve RHS’s video surveillance footage; (5) RCSC failing to
conduct a formal investigation as required by RHS’s Emergency Preparedness Plan; and (6)
RCSC failing to report DeLucio’s neglect of Megan as required by Indiana law. The
Lyonses, however, have failed to designate evidence from which a finder of fact might
reasonably infer that any of these acts were intended by RCSC to cover up its alleged tortious
conduct.
22 IV. Indiana Insurance
The Lyonses argue that the trial court abused its discretion in granting Indiana
Insurance’s motion to quash the Lyonses’ third-party discovery requests and in denying the
Lyonses’ motion for leave to amend their complaint to add Indiana Insurance as a defendant.
“An abuse of discretion may occur if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court or if the trial court has misinterpreted
the law.” In re Ind. Newspapers Inc., 963 N.E.2d 534, 543 (Ind. Ct. App. 2012).
The Lyonses requested that Indiana Insurance provide deposition and documents
concerning its claims investigation and evidence preservation policies, generally; and the
investigation of Megan’s death and the preservation (or lack thereof) of the video
surveillance, specifically. The asserted purpose of this discovery was to investigate and
develop a third-party spoliation claim against Indiana Insurance for its failure to preserve
RHS’s video surveillance footage. In addition to the privileged nature of many of the
requested documents, the trial court found that Indiana Insurance did not owe a duty to the
Lyonses to direct RCSC to preserve a copy of the video. Further, the trial court “[did] not
believe that the doors to the insurance company and its files should be opened under the
guise of conducting discovery for a possible third-party spoliation claim.” Appellants’ App.
p. 23. We agree.
The Lyonses claim that Indiana Insurance owed them a duty to direct RCSC to
preserve RHS’s video surveillance footage because litigation was foreseeable. In
determining whether an insurer owes a duty to a plaintiff to maintain evidence “we analyze
23 (1) the relationship between the parties, (2) the reasonable foreseeability of the type of harm
to the type of plaintiff at issue, and (3) the public policy promoted by recognizing an
enforceable duty.” Am. Nat. Prop. & Cas. Co. v. Wilmoth, 893 N.E.2d 1068, 1070-71 (Ind.
Ct. App. 2008). In Wilmoth, “we concluded that the third-party insurer had no duty to the
claimant to preserve evidence ‘when no lawsuit had been filed, when the relevance of the
evidence could not have been anticipated, and when [the insurer] never had possession of the
evidence.’” Kelley v. Patel, 953 N.E.2d 505, 510 (Ind. Ct. App. 2011) (quoting Wilmoth, 893
N.E.2d at 1074).
Here, although Indiana Insurance conducted an investigation into Megan’s choking
incident “oriented toward the prospect of litigation,” Appellants’ App. p. 928, it is undisputed
that Indiana Insurance did not take possession of RHS’s video surveillance footage. While
the lack of physical possession is not dispositive of the issue, Kelley, 953 N.E.2d at 510
(citing Wilmoth, 893 N.E.2d at 1072), “it lessens the relationship between the insurer and the
[third-party claimant]” and “counsels against” finding that Indiana Insurance owed a duty to
the Lyonses. Id. (citing Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134, 137 (Ind.
Ct. App. 1998)). Even more so, the record indicates that Indiana Insurance had no
knowledge that the surveillance system or the video footage existed until well after the
ninety-day storage period had expired. It is hard to imagine how an insurer could have owed
a third-party claimant a duty to preserve evidence when neither party was aware of the
evidence’s existence at the time of spoliation.
The Lyonses further contend that Indiana Insurance owed them a duty to reasonably
24 investigate Megan’s choking incident, by which it should have discovered the surveillance
system and video footage during its on-site investigation of RHS. The Lyonses, however,
rely on a misreading of the following passage from Thompson:
A liability carrier has a duty in the ordinary course of business to investigate and evaluate claims made by its insureds. Burr v. United Farm Bureau Mut. Ins. Co., 560 N.E.2d 1250, 1255 (Ind. Ct. App. 1990), trans. denied. In carrying out this duty, carriers take possession of documents and things that must be authenticated and tested to evaluate claims. These same documents and things will be key items of evidence in the event that the claims are denied and litigation ensues. This conduct by necessity gives rise to a relationship with the third party claimant.
704 N.E.2d at 137.
Contrary to the Lyonses’ assertion, an insurer’s duty to investigate arises from its
contract with the insured, not any special relationship with a third-party claimant. See
Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 190 F.R.D. 532, 535 (S.D. Ind.
1999) (stating that an insurer’s duty to investigate is contractual). In Thompson, we
considered that, because a liability insurer owes its insured a duty to investigate, it should
foresee that certain evidence it encounters during its investigation of a claim will be relevant
in future litigation surrounding that claim. 704 N.E.2d at 137 (“Liability insurance carriers
are no strangers to litigation, and it strains credulity to posit … that a liability carrier could be
unaware of the potential importance of physical evidence.”). This foreseeability5 supports a
finding that the insurer stands in a special relationship with a third-party claimant that may
give rise to a duty to preserve that evidence. But, Indiana Insurance did not owe the Lyonses
5 We note that not all evidence is foreseeably relevant. See Am. Nat. Prop. & Cas. Co. v. Wilmoth, 893 N.E.2d 1068, 1072 (Ind. Ct. App. 2008) (distinguishing Thompson).
25 a duty to investigate.
The trial court did not abuse its discretion quashing the Lyonses third-party discovery
requests. And because we hold that the Lyonses cannot assert a valid spoliation claim against
Indiana Insurance, the trial court’s denial of the Lyonses’ motion for leave to amend the
complaint to add Indiana Insurance as a defendant also was not in error.
The judgment of the trial court is affirmed in part and reversed in part.
BAKER, J., concurs.
ROBB, C.J., concurs in part, concurs in result in part, and dissents with opinion.
26 IN THE COURT OF APPEALS OF INDIANA
MICHAEL E. LYONS, Individually; ) DENITA L. LYONS, Individually; ) MICHAEL E. LYONS and DENITA L. ) LYONS, as Co-personal Representatives ) of the Estate of Megan Renee Lyons, deceased, ) ) Appellants/Plaintiffs, ) ) vs. ) No. 89A04-1204-PL-159 ) RICHMOND COMMUNITY SCHOOL ) CORPORATION d/b/a RICHMOND HIGH ) SCHOOL; JOE SPICER; JEFFREY THORNE; ) and MAGGIE LaRUE, in their individual ) and official capacities, ) ) Appellees/Defendents. )
ROBB, Chief Judge, concurring in part, concurring in result in part and dissenting in part with opinion.
I concur with the majority’s decision that the trial court improperly granted summary
judgment on the Lyonses’ ITCA claims because a genuine issue of material fact remains as to
when the Lyonses could have learned of RCSC’s alleged acts or omissions and whether that
was within 180 days of filing their notice of claim. I, however, would also hold that the
Lyonses have made a case for tolling the time period in which they could file their notice of
claim because of fraudulent concealment. I also respectfully dissent from the majority’s
27 decision that that trial court properly granted summary judgment to RCSC on the Lyonses’
Section 1983 claims. As to all other aspects of the majority opinion, I concur.
I believe many of the things that raise a question of fact as to when the Lyonses should
have discovered their cause of action also raise a question of fact as to whether RCSC was
fraudulently concealing material facts concerning the Lyonses’ cause of action. RCSC
Principal Bergdoll was present at two meetings on the day of the incident. In one meeting,
Bergdoll and LaRue met with cafeteria employees and told them not to discuss the incident
with anyone. Allegedly, this was a reminder about HIPAA regulations and RCSC
confidentiality policies. However, assuming RCSC was a covered entity required to comply
with the HIPAA Privacy Rule,6 HIPAA would not preclude any disclosures to Megan’s
parents about the incident. See 45 C.F.R. § 164.502(g) (concerning implementation of the
Rule with respect to unemancipated minors). There is no indication this distinction was
made clear to employees at the meeting. Moreover, a cafeteria worker’s eyewitness account
of the incident would not be protected health information subject to the Privacy Rule.
RCSC’s confidentiality policy is not part of the record, but I believe it is unlikely it would
preclude disclosures to parents in situations such as this. LaRue told the cafeteria employees
the sanction for speaking about the incident would be immediate termination of employment.
Neither Bergdoll nor LaRue asked the workers if they had seen anything. In the second,
Bergdoll held a meeting with school administrators, including vice principal Hensley, to
6 HIPAA applies to “covered entities,” defined as a health plan, a health care clearinghouse, or a health care provider who transmits health information in electronic form in connection with covered transactions. 45 C.F.R. § 160.103. Most schools, even those that may have health information, are not
28 recap what had happened and discuss what could have been done differently. The existence
of the cafeteria video surveillance tape was also discussed at that meeting. Despite the
acknowledgement of the video during this meeting, it was never viewed and it was not
preserved. Bergdoll stated during a deposition that she had not watched the video because
she saw no reason to.
While Megan was still in the hospital, Hensley told the Lyonses that she had been
without oxygen for a very short period of time. Although that phrase is susceptible to more
than one interpretation, “very short time” in this context would not likely be understood by
anyone to be as long as fifteen to twenty minutes, the time Megan was actually without
oxygen. Two or three times, the Lyonses asked to sit down with Hensley and go over what
had happened. The last time, prior to RCSC graduation ceremonies on June 14, 2009,
Hensley told them to contact him after graduation. One hundred and eighty days after
Megan’s choking incident was June 7, 2009.
There are two types of fraudulent concealment: active and passive. Garneau v. Bush,
838 N.E.2d 1134, 1142 (Ind. Ct. App. 2005), trans. denied. Active concealment occurs when
there is an intention to mislead, to hinder a plaintiff from obtaining information by the use of
ordinary diligence, or to prevent inquiry or elude investigation. Hopster v. Burgeson, 750
N.E.2d 841, 854 (Ind. Ct. App. 2001). Passive concealment can be merely negligent and
arises from failure to disclose material information when a special relationship exists
between the parties. Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995). Although
required to follow HIPAA because they do not engage in covered transactions.
29 fraudulent concealment is an equitable doctrine, where it is an issue subsidiary to the statute
of limitations defense which is in turn subsidiary to an action at law, factual questions
relevant to the statute of limitations are generally for a jury to determine. Fager v. Hundt,
610 N.E.2d 246, 253 n.5 (Ind. 1993).
In my opinion, the Lyonses have presented enough evidence to at least raise a question
of fact as to whether the doctrine of fraudulent concealment applies in this case, and, if so,
whether the concealment was active or passive, when the statute of limitations began to run,
and ultimately, whether they filed their notice within a reasonable time. The Lyonses
designated evidence that Hensley was less than forthright with them in answering their
question about how long Megan was without oxygen or agreeing to meet with them to
discuss the incident; that not only did the school not preserve a video that would have shown
the incident, but did not even bother to view it; and that employees who were in the vicinity
were threatened with termination if they discussed the incident. The Lyonses relied on
Hensley’s assertion that Megan had been without oxygen for a “very short period of time”
and believing there was no way to know exactly what happened in the cafeteria that day until
Swearingen contacted them, did not suspect anything more egregious than that their child,
who had known eating issues, had simply choked and died despite everyone doing everything
they could to save her. LaRue did not speak directly to the Lyonses, but in speaking to her
employees, including Swearingen, and possibly misrepresenting their obligations under the
law, she might have kept her employees from speaking to the Lyonses, further keeping them
unaware of the actual course of events. Mrs. Lyons testified during her deposition that she
30 and her husband “always said we had to believe, we had to believe that everything was done
and should have been done, until we found out differently. And we had told ourselves if
anything went wrong that day and things didn’t happen the way we were told or the way
things should have happened, it would come out.” Appellants’ App. at 300-01. Whether or
not RCSC’s actions and inactions, through its employees, constituted fraudulent
concealment, is not an issue I believe the trial court should decide on summary judgment
because it requires weighing the evidence to determine whether there was intent and
reasonable reliance. Therefore, I would also reverse the trial court’s grant of summary
judgment on this ground.
I also respectfully dissent from the majority’s decision affirming the trial court’s grant
of summary judgment on the Lyonses’ Section 1983 claims. I believe there is at least a
question of fact as to whether there was a special relationship between RCSC and Megan.
Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999), cited by the majority, see slip op. at 20
n.4, does note that circuits that have considered whether a student is similar to a prisoner or a
patient with respect to whom a special duty of care exists have “uniformly rejected” the
argument. Id. at 71. However, Hasenfus also quotes Vernonia Sch. Dist. v. Acton, 515 U.S.
646, 655 (1995), in which the Supreme Court stated, “[W]e do not, of course, suggest that
public schools as a general matter have such a degree of control over children as to give rise
to a constitutional ‘duty to protect.’” (Emphasis added.) Hasenfus posits the Supreme
Court’s language does not foreclose “now and forever” liability for a due process violation
for inaction by a school toward a pupil, but leaves open the possibility that “in narrow
31 circumstances there might be a ‘specific’ duty.” 175 F.3d at 71-72. Those narrow
circumstances are limited to “behavior so extreme as to ‘shock the conscience’ . . . [or]
conduct that is truly outrageous, uncivilized, and intolerable.” Id. at 72.
“In the context of educating children, the in loco parentis doctrine is particularly
important based on Indiana’s compulsory education laws mandating the availability of public
education for its citizens and the ensuing recognition that schools need to stand in the
position of parents and guardians to the students . . . .” Griffin v. Simpson, 948 N.E.2d 354,
358 (Ind. Ct. App. 2011); see also Vernonia Sch. Dist., 515 U.S. at 655 (“[W]e have
acknowledged that for many purposes ‘school authorities ac[t] in loco parentis[.]’”). Even
more than with a typical high school student, RCSC was acting in loco parentis with respect
to Megan, who, because of her disabilities, was labeled “severely and profoundly
handicapped.” Appellant’s App. at 325. Although Megan was seventeen years old, she was
non-verbal and functioned at the level of a two- or three-year old child. Megan was
incapable of caring for herself and required supervision at all times. RCSC was not so much
providing educational resources to Megan as assisting her with developmental goals. It was
not just her guardian during the school day, but also her caretaker. The State of Indiana
implemented Individual Education Programs for Megan that recognized her special needs,
including in the area of food consumption, and RCSC assigned a one-on-one
paraprofessional to Megan to attend to her needs. Mrs. Lyons testified that “[w]e knew she a
had [sic] one-on-one para who was there and could have and should have responded to any
immediate need. I always thought that was Ms. Vicki, and I had the comfort that it was Ms.
32 Vicki because of the relationship she had with Megan.” Appellants’ App. at 300. Lett had
been Megan’s paraprofessional for at least two years prior to this incident, but on the day
Megan choked, a different paraprofessional was assisting her at lunch unbeknownst to her
parents. Despite knowing that choking was a known danger of Megan’s condition, the
school had no apparent protocol in place for handling a situation such as this, either for
Megan or any other student, and when Nurse Provance was called to the cafeteria, she was
not alerted to the emergency nature of the call. Whether, under these circumstances, RCSC
failed to protect Megan from a danger it created (by giving her a different paraprofessional
on this day) or made worse (in its response to the emergency), and whether its conduct
“shocks the conscience” is a fact issue I believe inappropriate for summary judgment. See
King ex rel. King v. East St. Louis Sch. Dist. 189, 496 F.3d 812, 818 (7th Cir. 2007) (“The
inquiry into whether official conduct shocks the conscience in a given case is a necessarily
fact-bound inquiry.”). I would therefore reverse the entry of summary judgment on the
Lyonses’ Section 1983 claim.