S.J. v. Lafayette Parish School Bd.

• Decision Date: 29 July 2009
• Docket Number: No. 08-900.,08-900.
• Parties: S.J. et al. v. LAFAYETTE PARISH SCHOOL BOARD.
• Court: Court of Appeal of Louisiana — District of US

16 So.3d 615

S.J. et al. v. LAFAYETTE PARISH SCHOOL BOARD.

No. 08-900.

Court of Appeal of Louisiana, Third Circuit.

July 29, 2009.

Opinion on Denial of Rehearing September 9, 2009.

Jeffery F. Speer, J. Louis Gibbens, Jason E. Fontenot, Doucet-Speer & Gibens APLC, Lafayette, LA, for Plaintiffs/Appellants S.J., et al.

L. Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellee, Lafayette Parish School Board.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.

COOKS, Judge.

This court previously addressed this case upholding the trial court's grant of summary judgment dismissing the School Board based on its finding that the School Board had no duty to safeguard a child's well-being after the child leaves the school property. The Louisiana Supreme Court reversed this court and remanded the case for trial. (See S.J. v. Lafayette Parish School Board, 06-2862, (La. 6/29/07), 959 So.2d 884). The trial court rendered judgment after trial on the merits again dismissing the suit against the School Board finding no fault on the part of the Lafayette Parish School Board. Plaintiff timely appealed the trial court's judgment. We reverse.

DISCUSSION OF FACTS

On November 4, 2004, C.C., a minor child twelve years of age, was sexually attacked by an unknown assailant as she walked home from Lafayette Middle School in Lafayette, Louisiana. The child's mother, individually and on behalf of her minor daughter, sued the Lafayette Parish School Board. The child was kept after school for Behavior Clinic. On a prior date, the child's mother signed a document clearly indicating that her child was not allowed to walk home. Testimony at trial from the child, her friend who was with her in Behavior Clinic that date, the assistant principal, the Behavior Clinic Facilitator, the bus driver, and teachers, established that the children had previously been informed they were not allowed to ride the late bus home when held over for Behavior Clinic. C.C. testified that an announcement reminding students of the policy prohibiting Behavior Clinic students from riding the bus home was repeated on November 4, 2004, the day of the incident. Mrs. Brenda Faye Billedeaux, the Behavior Discipline Center Facilitator at Lafayette Middle School, testified at trial "the purpose of Behavior Clinic is not to provide you with the luxury of a free ride home. I'm not obliged to find a way for Behavior Clinic students to get home." (Emphasis added). The uncontradicted evidence further established the school had a policy in place that students such as C.C. sent to Behavior Clinic were not allowed to ride any bus home after Behavior Clinic, including the late "tutoring" bus. The trial judge noted in his reasons for judgment that "there is a confusing system relating to bus use by students in behavior clinic, and there is no evidence that this particular student knew she could ride the bus." (Emphasis added.)

Behavior Clinic ended that day at about 4:15 P.M. According to C.C., she assumed her mother would be at school to pick her up after Behavior Clinic, as she had in the past, and then take she and her friend to Popeyes before taking her friend home. When C.C. got out of Behavior Clinic there was no one at school to pick her up. According to C.C., she went back and forth to the office and to her teacher trying to call home, to no avail. The testimony again undisputably establishes the child's mother was not informed ahead of time to allow her to make arrangements for her child to get home safely after Behavior Clinic and received no word that day that C.C. needed a ride home. The testimony also established the mother had made such arrangements in the past when she was made aware of the necessity to provide C.C. a way home from school.

S.R.C., C.C.'s classmate, testified as she was leaving the school campus, C.C. approached her and asked if she could walk with her. C.C. and her classmate left the school together at about 4:30 P.M. walking directly up the well-lit and well-trafficked street which passes directly in front of the school, to the Popeyes Fried Chicken establishment located at "four corners" across the street from the city bus stop where her friend caught the bus. This took about 15 minutes. C.C. and her classmate were at Popeyes for a short time, about 20 minutes. C.C. had no money and her friend had only enough for her own bus fare.¹ C.C.'s friend crossed the street to catch the city bus and C.C. proceeded to walk home alone. It was already getting dark on this November evening when C.C. continued her walk home. C.C. described the time of day when she was attacked as "night-time." The walk home from school would normally take about an hour from the school or 45 minutes from the Popeyes establishment. Because C.C. was attacked that day, she did not arrive home until approximately 6:30-6:45. The police were summoned and, according to the officer's testimony, they arrived at C.C.'s home between 6:30 and 7:00 P.M. After the police questioned C.C. she was transported to the hospital by ambulance where a rape kit was administered which disclosed the presence of semen.²

All witnesses agreed, the area through which this 12 year old girl had to walk some two and one-half miles to get home was not safe for any child to walk through and is well known as a high crime area frequented by prostitutes, drug trafficking, and criminal activity. The school teachers, principal, assistant principal, Mrs. Billedeaux, the janitor, the school bus driver, Plaintiff and her mother, all agreed wholeheartedly and without contradiction that the area through which this child had to walk to get home on Cameron and University streets, known as "four corners," is a notoriously dangerous area through which no child, or adult, can safely traverse without exposure to harm.³ The testimony of two Lafayette Police Officers, one in charge of public information, also established, through both statistical data and personal knowledge, that the area through which C.C. passed to walk home was notoriously dangerous and not safe for her to walk through.

LAW AND ANALYSIS

Louisiana law specifically mandates the School Board must provide free bus transportation to all eligible students. In the previous review of this case by the Louisiana Supreme Court on supervisory writ, Justice Johnson correctly pointed out the provisions of La. R.S. 17:158(A)(1) are "mandatory and requires that the school board shall provide free transportation for students residing more than one mile from the school they attend." (Emphasis added) S.J., 959 So.2d at 886. This court, in Moreau v. Avoyelles Parish School Board, 04-1613 (La.App. 3 Cir.3/9/05), 897 So.2d 875, specifically held:

"No parish or city school board shall eliminate or reduce the level of transportation services provided to students as required by the provisions of this Section [17:158] except for economically justifiable reasons approved in accordance with the provisions of this Subsection by the State Board of Elementary and Secondary Education." Moreau at 881-882.

This court further expressly stated in Moreau "the concept of free education in Louisiana includes as a primary element the transportation to and from school." Id. at 883.

As this court also aptly held in Moreau: La. R.S. 17:158 provides a scheme whereby a city or parish school board is required to provide all students (1) who attend a BESE Board approved elementary or secondary school within its jurisdictional boundaries and (2) who live more than one mile from that school with free transportation to and from the school. The free transportation requirement extends to all approved schools within the jurisdictional boundaries ... The only permissible non-fiscal reason for denying this free transportation right to all eligible students is if the school involved discriminates against anyone on the basis of race, creed, color, or national origin. (Emphasis added)

Id. at 882.

The law makes no exceptions based on whether the student is a "good" or "bad" student. The Lafayette Middle School clearly instituted a policy whereby it denied bus transportation to students placed in Behavior Clinic after regular school hours. The policy was made very clear to students including in particular, C.C. She testified that Mr. Pollan and Mrs. Reed told her, and made general announcements to the student body, that students were not allowed to ride the bus home if held over for Behavior Clinic. Particularly noteworthy is C.C.'s response when questioned at trial as to whether she thought to ask the bus driver to see if she could get a ride home on the late school bus even though she had Behavior Clinic that day. C.C. stated: "no cause I didn't want to go behind Mr. Pollan's back and get on the bus anyway. I could get suspended." As noted, even the trial judge found in his reasons for judgment "there is no evidence that this particular student knew she could ride the bus." (Emphasis added.) When the school chose to institute a policy contrary to the statutory requirement of free transportation it assumed a high burden of responsibility to ensure that any child denied such transportation has an alternate safe means of getting home.

BREACH OF DUTY

The Board's reliance on a recorded message call, to the child's home telephone, with no assurance that the call was received by an adult, i.e. parent, does not discharge this duty. The defense further offered testimony to establish C.C. was afforded the opportunity to make a telephone call to her mother. Though it is unnecessary in the end for us to resolve any conflict in the testimony, we take brief liberty to make the following observations. A careful review of the testimony of witnesses called by the school board discloses that none of these witnesses can directly contradict C.C.'s testimony that the office door was locked when she attempted to open...