Crider By and Through Crider v. Bayard City Schools

• Decision Date: 27 September 1996
• Docket Number: No. S-94-606,S-94-606
• Citation: Crider By and Through Crider v. Bayard City Schools, 553 N.W.2d 147, 250 Neb. 775 (Neb. 1996)
• Parties: , 112 Ed. Law Rep. 1023 Mitchell D. CRIDER, a minor, By and Through his Mother and Next Friend, Brenda L. CRIDER, and Marvin Crider and Brenda L. Crider, husband and wife, Appellants, v. BAYARD CITY SCHOOLS et al., Appellees.
• Court: Nebraska Supreme Court

Page 147

553 N.W.2d 147

250 Neb. 775, 112 Ed. Law Rep. 1023

Mitchell D. CRIDER, a minor, By and Through his Mother and Next Friend, Brenda L. CRIDER, and Marvin Crider and Brenda L. Crider, husband and wife, Appellants, v.BAYARD CITY SCHOOLS et al., Appellees.

No. S-94-606.

Supreme Court of Nebraska.

Sept. 27, 1996.

Syllabus by the Court

1.Demurrer: Pleadings: Appeal and Error.When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.

2.Judgments: Demurrer: Appeal and Error.An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken.

3.Demurrer: Pleadings.In determining whether a cause of action has been stated, a petition is to be construed liberally.If as so construed the petition states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled.

4.Special Education.The education of handicapped children is governed by both federal and state legislation.

5.Federal Acts: Special Education: States.The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.(1994), is a funding statute under which the federal government supplies financial assistance to the states for the education of disabled students.Under 20 U.S.C. § 1400(c), the act requires that states that accept federal funds must provide disabled children with a "free appropriate public education."

6.Schools and School Districts: Special Education.A "free appropriate public education" requires that each handicapped child be provided with personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction, which instruction and services must be provided at public expense, must meet the state's educational standards, must approximate the grade levels used in the state's regular education, and must comport with the child's individualized educational program.

7.Schools and School Districts: Special Education.School districts must provide not only a "free appropriate public education," but also the necessary related support services for achieving that goal.Those services have been statutorily defined to include physical therapy.

8.Administrative Law: Judicial Notice.It is a well-settled rule in Nebraska that state courts can take judicial notice of general rules and regulations established and published by federal agencies under authority of law.

9.Schools and School Districts: Special Education.Special education programs and support services may be provided by contracting with an approved service provider; however, responsibility for compliance with state and federal regulations remains with the resident school district.

10.Schools and School Districts: Special Education.The resident school district shall monitor the progress of those children for whom it has contracted for related services.

11.Schools and School Districts: Special Education: Due Process.School districts must provide a copy of the procedures for complaints and due process hearings to parents of students for whom they have contracted for related services.

12.Schools and School Districts: Special Education: Notice.The resident school district is required to provide notice to the parents of a child with a disability before the school district proposes to change the educational placement or the provision of a free appropriate education to the child.

13.Schools and School Districts: Special Education.A school district, educational service unit, or human service center does not have a duty derived from common law to monitor the care of a physical therapy patient or to report any proposed changes in care to the patient's parents.

14.Schools and School Districts: Special Education: Health Care Providers.A school district, educational service unit, or human service center is entitled to rely upon the competence of a professional therapist, licensed, paid, and supplied by a hospital or similar entity, to properly treat patients under their care.

15.Actions: Administrative Law: Special Education: Damages: Proof.Even in circumstances where the relief sought in a civil action is not available in an Individuals with Disabilities Act or Special Education Act administrative proceeding (e.g., where monetary damages are sought), the burden of pleading and proving that administrative remedies would be futile falls upon the party seeking to avoid them.

16.Health Care Providers: Negligence.Once a hospital agrees to provide medical services to a patient, that hospital and its licensed professional employees owe a duty to a patient to exercise that degree of care, skill, and diligence generally used by hospitals in the community or hospitals located in similar communities.

17.Schools and School Districts: Negligence: Liability.A school district may be liable in permitting negligent conduct to occur on its premises when the school district knew, or reasonably should have known, that the negligent conduct on its premises presented an unreasonable risk of harm to those entrusted to the school.

18.Demurrer: Pleadings.When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that an amendment will correct the defect.

David J. Cullan, of David J. Cullan & Associates, Omaha, and Rebecca Maser Peterson, for appellants.

James R. Hancock, of Hancock & Denton, P.C., Scottsbluff, for appellee Bayard City Schools.

Bruce A. Smith, of DeMars, Gordon, Olson, Recknor & Shively, Lincoln, for appellee Educational Service UnitNo. 12.

Robert V. Roach and Thomas H. Cellilli III, of Hansen, Engles & Locher, P.C., Omaha, for appellee Region 1 Office of Human Development.

Rodney M. Confer and James A. Snowden, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee Regional West Medical Center.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

Mitchell D. Crider, a minor and special education student, by and through his mother and next friend, Brenda L. Crider, and Marvin Crider and Brenda L. Crider, husband and wife, the appellants, in an action in the Morrill County District Court, alleged that Regional West Medical Center and three educational entities, the appellees, failed to provide agreed-upon physical therapy mandated by law, resulting in severe injuries to Mitchell Crider.It was further alleged that this failure occurred without the knowledge of the parents.The petition alleged causes of action under common law and under Nebraska's Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq.(Reissue 1991).Following the filing of the appellants' second amended petition, the district court sustained the appellees' demurrers, in part on the basis that the appellants did not exhaust the administrative remedies provided under federal and state law.The appellants filed an appeal of that judgment with the Nebraska Court of Appeals.

The appellants alleged in their appeal that the trial court erred by holding that (1) special education students have no cause of action for personal injuries and damages suffered as a result of medical malpractice, medical abandonment, or other negligence; (2)the appellants must exhaust administrative remedies under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.(1994)(IDEA), and Nebraska's Special Education Act, Neb.Rev.Stat. § 79-3301 et seq.(Reissue 1994)(SEA), prior to filing a cause of action alleging negligence; and (3) IDEA and SEA provide the exclusive remedies to the appellants under the circumstances alleged in the petition.We removed the case to our docket pursuant to our power to regulate the caseloads of the lower courts.We reverse.

BACKGROUND--FACTS PLED

The appellants filed a second amended petition on February 25, 1994.Under the rules relating to review of demurrers, all well-pled facts are taken as true.With that in mind, we recite the following facts alleged.

Bayard City Schools, DistrictNo. 21(Bayard Schools);Educational Service UnitNo. 12(ESU # 12); and Region 1 Office of Human Development(Region 1), which operates the Child Development Center (CDC), are political subdivisions organized and existing under the laws of the State of Nebraska.

Regional West Medical Center (Regional West) is a private, nonprofit corporation and the operator of a medical facility and hospital licensed and regulated by the State of Nebraska.

This action against Bayard Schools, ESU # 12, and Region 1 was commenced pursuant to the Political Subdivisions Tort Claims Act.

Regional West is not qualified or covered under the Nebraska Hospital-Medical Liability Act.

Mitchell Crider was found to be a "handicapped child" within the meaning of SEA and thus was entitled to receive special education and related services from Bayard Schools and ESU # 12.

Bayard Schools and ESU # 12 were "servic[ing] agencies" within the meaning of SEA and were obligated to provide, fund, supervise, and direct special education programs for handicapped children such as Mitchell Crider who resided within the geographical boundaries of Bayard Schools and ESU # 12.

CDC, which was operated by Region 1, when providing services to the appellants, was a "service provider" and had been provisionally approved by the State Department of Education to provide special education contractual services.

Regional West, when providing medical care and treatment to Mitchell Crider, was a "service provider" and had been provisionally approved by the State Department of Education to provide "related services" to children such as Mitchell Crider.

Due to the lack of services available within Bayard Schools...