HISD Invokes Immunity in Case of Kindergartner With Broken Jaw
Attorney Chip Adams (L) and attorney and father Al Durrell wait in the HISD administration building lobby before going in to the hearing.
On August 25, 2016, a misbehaving five-year-old boy was turned upside down and marched from the cafeteria to the principal’s office at Wilson Montessori Elementary. Along the way, something went significantly more wrong because by the time the kindergartner’s father drove over to the school, his son’s jaw was broken.
The father, Houston attorney Al Durrell of the Lanza law firm, drove his son to the dentist, where he found out the extent of damage – the fractured jaw and news that two teeth would need to be removed that day – and began asking a lot more questions of the school and the Houston ISD.
Getting answers to what happened during that start-of-the-school-year incident at Wilson has proved to be agonizingly difficult. A requested videotape of the incident first promised, then withheld, then court-ordered and then reportedly accidentally written over, is gone. Three still photographs establish that the boy was being held upside down, but little else. The five-year-old, identified in court documents as C.B.D. to shield his identity, is now six but doesn’t possess an adult’s level of clarity to explain what happened to him.
And in any event, the answers may not matter if the HISD attorneys prevail in court. They argue that by state law, unless the abuse happened on a school bus or other school transportation, under the doctrine of sovereign immunity the school cannot be sued. The fact that C.B.D. was hurt is not in argument. In fact, according to court documents filed by the plaintiff, Wilson’s Montessori coordinator “Krystal Perkins stated that her elbow had come into contact with C.B.D.’s face in the hallway.” And school Principal Merrie “Beth” Bonnette also stated that she had contact with C.B.D.
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Durrell, who appeared before an HISD grievance committee Tuesday made up of board members and presided over by Jolanda Jones, argued his case in closed session as part of the district’s appeal process. He has a concurrent process going in the state district court system, appealing for help to unlock the HISD records through the discovery process. At the end of a lengthy meeting, Durrell says, the district agreed to pay his son's medical bills up until Tuesday and he was going to gather up receipts.
But there was no apology and Durrell says he plans to continue his appeal. "It took ten months to get here and I still have to appeal to the TEA [Texas Education Agency]," he says, before he can file a lawsuit. The statute of limitations on personal injury cases is two years, he adds.
Durrell readily admits that his son can be a handful. “My son has ADHD and epilepsy, which is kind of a bad combination. He becomes agitated somewhat easily, which is something I’m aware of and have never denied.”
That’s why he says they were so happy that C.B.D “won the lottery” and got a spot at the Wilson magnet school. He is no longer there; he now attends River Oaks Academy, a private school for kids diagnosed with ADHD and autism, Durrell says. And he’s been told he can never return to Wilson.
The incident started with C.B.D. and another child kicking a lunch pail back and forth under the lunchroom table. Things escalated from there and C.B.D. was hauled away. When his father arrived, he found the school nurse holding his son, who had blood on his clothing and was bleeding around his lower teeth. “At some point he got clocked in the mouth.”
Durrell says he asked if they had a video of the incident in the cafeteria and hallway walk and being assured they did, asked for a copy. By the next day that easy access agreement dissolved and he says he was told he would have to sue and subpoena the district for a copy.
He hired attorney Chip Adams of the Pierce Skrabanek Bruera law firm and they went to court asking that the district make a representative available for a deposition. This was on October 14. By October 18, 125th State District Court Judge Kyle Carter ordered the district to comply. Durrell says HISD dragged its feet in responding “and then on October 28, 2016, [informed] counsel that the video at issue ‘is no longer available.’” Now the case is on appeal before the 14th Court of Appeals.
We contacted HISD Tuesday, which through a spokeswoman declined to issue any statement about the case Tuesday, citing ongoing litigation.
Asked what he wanted to come out of all this, Durrell says: “I did ask for termination of several employees, but that has been denied and I was told is not being considered. I asked for re-training and hiring of more staff at Wilson both on handling of behavior incidents and use of excessive force. And yes, I asked for payment for medical expenses and therapy for [C.B.D.] stemming from this incident. We will also be seeking pain and suffering and punitives.”
"My primary concern is my son's education. We won a magnet lottery to get into Wilson — and were guaranteed what we thought would be a good school through the 8th grade. We no longer have that, because they tell me my son can't return after 1st grade.
"I have asked for them to continue to pay for private therapy school or give us our choice of HISD schools though the 8th grade."