TARGET 8 Cause of Death: Bullying Part Two: Attorneys weigh in on liability of schools, businesses

6 months 4 weeks 1 day ago Wednesday, March 22 2017 Mar 22, 2017 Wednesday, March 22, 2017 1:20:00 PM CDT March 22, 2017 in Target 8
By: Shanna Grove, KOMU 8 News Reporter & Jamie Grey, KOMU 8 Chief Investigator

GLASGOW – The coroner’s inquest for Kenny Suttner brought questions about the potential liability for employers and schools in terms of their responsibilities in handling bullying.

The circumstances surrounding the inquest in Glasgow are extremely rare.

The Target 8 Team spoke with experts about who may be held responsible for bullying that causes death and looked into the conflict between the coroner and the school.

The coroner’s inquest

In Frank Flaspohler’s 24 years as a coroner he has held 5 inquests.

"This was the first one to involve a suicide,” Flaspohler said.

He agreed he has never heard of inquests looking into bullying anywhere else.

"The coroner speaks for the deceased in order to protect the living, and I think that's really the underlying reason for this inquest,” Flaspohler said. “I wanted to speak for Kenny so we can protect other people from the same thing happening.”

The Glasgow school district’s attorney, as well as an employment law attorney, agreed on the uniqueness of this case.

Flaspohler felt the inquest was necessary for public health and said the risk of this happening to someone else was a possibility. Because of the inquest, Kenny’s death certificate will be marked homicide, rather than suicide.

"If I just marked the death certificate a gunshot wound but don't mark the death certificate why, then nobody looks at the underlying cause and we don't fix the problem,” Flaspohler said. “So bullying was the cause of death and that's the problem we need to address."

People who testified at the inquest said Kenny’s manager at Dairy Queen targeted him and forced him to do humiliating chores, such as cleaning the floor while on his stomach and verbally harassing him. Other testimonies said it continued at school.

"He had some pretty extreme bullying that was occurring at work, which ultimately let to the jury's decision that Harley Branham was the main actor in the involuntary manslaughter charge,” said April Wilson, the special prosecuting attorney at the time. “And he was also experiencing bullying it sounded like for a long period of time at school."

The school’s response

The school district’s attorney Tom Mickes said the loss of any student is a tragedy, but policies and procedures cannot stop all bullying.

"There is nothing that the school district or any of its employees could have done differently that would have avoided this tragedy,"Mickes said.

Mickes said there is a well-defined policy, yearly student and staff training and reporting forms for bullying.

He said the inquest tarnished the reputation of the school district and the people who give their lives to the education and welfare of kids.

“What it is, is a character assassination, it doesn’t carry any weight other than assassinating the reputation of a lot of men and women who give themselves to those kids to provide them with the best education possible in a safe environment every single day. There was no notice there was any bullying of this student.”

A release from the Glasgow School District said, “Reputations and character of District teachers, administrators have been harmed as a result of a proceeding in which they were not allowed to defend themselves. Unfortunately, the coroner has, in an apparent attempt to justify his actions, made statements about the District and its staff that he knows to be false."

Mickes said the evidence at the inquest was “cherry picked,” and he said the school district voluntarily provided the coroner documents and made teachers available.

"The coroner said that the district did not cooperate, the school district, which was totally false," Mickes said.

However, Flaspohler does not agree.

“There were no fabrications, there were no lies,” Flaspohler said. “I'm not going to get into an argument with the school over this or that because that diverts from what I want people to focus on and that is bullying."

Responsibility of schools

"School districts have a legal responsibility to prevent bullying that involves illegal discrimination and harassment," said Susan Goldammer, an attorney with the Missouri School Boards’ Association.

She said the Missouri School Boards’ Association provides information, training and sample policies to school districts.

She said although school districts and parents consciousness surrounding the negative affects of bullying has increased, it has also become more common to sue school districts in cases of “alleged bullying.”

“I don’t think that the school district has responsibility for absolutely everything a child says or does, that said it has become somewhat of a trend to sue school districts, particularly in situations where students commit suicide,” Goldammer said.

She said there are state statutes that address bullying.

“We have a state statute that requires all school districts to have a policy,” Goldammer said. “And it is very detailed what needs to be in the policy, regarding immediately investigating bullying, it also goes into some detail as far as training, training of staff and directing of staff to assist victims.”

She also said there is a state statute that requires school districts to report criminal behavior, and some acts of bullying might be considered harassment of first degree - which is a felony.

“The real difficulty school districts face is actually identifying misbehavior as bullying and then coming up with a solution to try and train the young person not to bully again in the future,” Goldammer said.

She said the only way school districts can protect themselves from lawsuits in this case is to do as much as possible to prevent bullying in the beginning and handle it when it happens.

“School districts need good policies, they need good training for their staff, they need good training for the students, they need to do everything they can to foster a climate and a culture where students come forward and correct it themselves or come to a trusted adult to report it,” Goldammer said. “They need to work cooperatively with parents in trying to curb behavior and they need support of parents and community that are going to help them correct student behavior.

The Center for Education Safety is a part of the MSBA and provides member districts with safety resources and training.

“One of the things with the center for education safety that we do is a proactive way to address any situation with school violence, especially bullying, is looking at it from a multidisciplinary approach, so we recommend that they use a multidisciplinary team in their school districts,” Kara Sanders, administrator with MSBA’s Center for Education Safety, said.

Potential liability for employers
"Depending on the circumstances and the fact involved, there is certainly the potential for liability to the employer directly through a tort type of claim under Missouri common law, and there's certainly also potential for liability under the Workers’ Compensation Act," said Marjorie Lewis, an employment law attorney with Brown Willbrand, P.C.

However, Lewis said in most cases there is probably not going to be any liability or compensation under Missouri common law or the Workers’ Compensation Act because of high standards to get compensation for emotional distress injuries.

She said the Workers’ Compensation Act covers most workplace injuries, however an employee could have some advantages of getting around the act in order to make a direct claim against the employer.  

“The advantage to an employee by having it not covered by the workers compensation act is they could file in certain circumstances a direct lawsuit against their employer under Missouri common law tort claims,” Lewis said. “And that has the potential for getting a higher award than what you could get in a Worker’s Compensation Case. Workers compensation cases also have their advantages because they assure to the employee that the employee in proper cases will get compensated.”

She said it is a harder to make a case in a lawsuit for tort liability. The worker’s compensation system is a more straightforward claim to make, but has some limitations, according to Lewis.

“Under the workers’ compensation system, normally your typical day to day emotional distress that you might have at work, that’s considered standard in the type of employment that you’re in,” Lewis said. “That’s not going to be compensable.”
However, Lewis said there are scenarios where an employee or their survivors could maintain a claim based on bullying or severe emotional distress resulting in a suicide.

“There is always potential for liability,” Lewis said.

Lewis said it’s important for employers to make sure that bullying is not happening and should train employees and monitor the workplace for bullying and harassment.
“If I were advising an employer on the risk, I would say don’t let this occur, do what you can to not let this occur in the workplace,” Lewis  said. “And provide training, provide written policies and procedures make sure that there are ways for employees to report any harassment or bullying and make sure that the employees can report to someone who is not in their direct supervisory line.”

She said hopefully employers will take bullying seriously if they haven’t already and make sure it is not happening.

“I do think that this case will make it so that attorneys and employees and their families are more likely to think about whether or not they have a claim,” Lewis said. “If there’s bullying or harassment or if suicide is a result, I also do think that employers are looking at this.”

Click here to explore our interactive content for this story, including expanded interviews and maps to see where bullying is most frequent in Missouri.

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