Lyons v. Richmond Cmty. Sch. Corp.

Decision Date08 May 2013
Docket NumberNo. 89A04–1204–PL–159.,89A04–1204–PL–159.
Citation990 N.E.2d 470
PartiesMichael 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, v. 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.
CourtIndiana Appellate Court


Gary P. Price, Indianapolis, IN, Attorney for Appellants.

Rick D. Meils, John W. Mervilde, Meils Thompson Dietz & Berish, Indianapolis, IN, Attorneys for Appellees, Richmond Community School Corporation et al.

James S. Stephenson, Stephenson Morow & Semler, Indianapolis, IN, Attorney for Appellee, Indiana Insurance Company.



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.

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–PartyRespondent 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.


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 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. 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.

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 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 Children's Hospital. During the visit, Mrs. Lyons repeatedly asked Hensley how long Megan had been without oxygen. Hensley 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....

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