MICHAEL E. LYONS, INDIVIDUALLY; DENITA L. LYONS, INDIVIDUALLY; MICHAEL E. LYONS AND DENITA L. LYONS, AS COPERSONAL REPRESENTATIVES OF THE ESTATE OF MEGAN RENEE LYONS, DECEASED, Appellants (Plaintiffs below),
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 below), INDIANA INSURANCE COMPANY, Appellee (Non-Party Respondent)
[Copyrighted Material Omitted]
Appeal from the Wayne Superior Court, No. 89D01-1006-PL-11. The Honorable Peter D. Haviza, Special Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 89A04-1204-PL-159.
ATTORNEYS FOR APPELLANTS: Gary P. Price, David W. Gray, Matthew S. Tarkington, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES: Rick D. Meils, John W. Mervilde, Indianapolis, Indiana; James S. Stephenson, Rosemary L. Borek, Indianapolis, Indiana.
Massa, Justice. Rush, C.J., and Dickson, Rucker, and David, JJ., concur.
The parents of a child who choked to death during lunchtime in a high school cafeteria sued the school and several administrators. The trial court granted defendants' motion for summary judgment. We reverse.
Facts and Procedural History
Megan Lyons, a seventeen-year-old Richmond High School student with Down Syndrome, was severely disabled. She had difficulty eating and sometimes failed to chew her food sufficiently or took too many bites before swallowing. To address these concerns, Achieva Resources Corporation, a provider for persons with developmental disabilities, worked with the State to develop safety plans for Megan. Achieva Program Manager Julia Hamilton provided the School with Megan's Risk Plan, which stated in part: " Staff monitors Megan at every meal/snack. She is never to be left alone to eat a meal or snack." App. at 517. Hamilton also provided the School with Megan's Dining Plan, which stated in part:
Megan does not chew her food well. Some foods she does not chew at all, she swallows whole. Megan tends to shovel her food. She will choke if she gets too much in her mouth. Megan needs monitoring during meals/snacks. She eats fast and needs verbal prompts to slow down.
App. at 562. According to Megan's paraprofessional, Vicki Lett, " there was an established procedure because [the School] knew how Megan only chewed once or twice and just swallowed her food. Her food was to be cut up." App. at 933.
On January 7, 2009, however, paraprofessional Cindy DeLucio was assigned to supervise Megan during lunchtime. DeLucio had never supervised Megan during lunch before, was unaware of her Risk and Dining Plans, and did not cut Megan's sandwich into pieces. At some point during the lunch period, Megan began to choke, and DeLucio sought help from Assistant Principal Joe Spicer, who was in the hallway outside the cafeteria. When she was unable to get his attention, DeLucio called Lett, who was stationed at a nearby table. Lett began pounding Megan's back and told DeLucio to get help. DeLucio returned with Assistant Principal Jeff Thorne, who also pounded Megan on the back. These efforts were unsuccessful, so DeLucio approached Spicer and told him he was needed in the cafeteria. Spicer went to Megan and began trying to assist Thorne. During this time, no one attempted the Heimlich maneuver or CPR, and despite the fact that the School's Quick Response Guide recommends calling 911 immediately in the event of an emergency, no one did. Toni Amburgey, a health teacher responsible for training students in CPR, was standing in the cafeteria doorway but did not offer any assistance.
Three or four minutes after Megan began choking, someone contacted the nurse's station. Nurse Sharon Provance received the call and assumed there had been a fight, so before walking to the cafeteria, she gathered first-aid supplies and prepared a bag of ice. She arrived about ten minutes after receiving the call,
at which point she removed a tennis ball-sized clump of bread from Megan's mouth but was unable to clear her airway. Provance then instructed Spicer to call 911, which he did. Emergency medical technicians arrived approximately three minutes later and restored Megan's airway before taking her to the hospital.
Shortly afterward, Principal Barbara Bergdoll and Food Services Coordinator Margaret LaRue held a meeting with cafeteria worker Rhonda Swearingen, who had witnessed the entire incident, and three other cafeteria workers. LaRue, while pointing at Swearingen, told the cafeteria workers that if they spoke to anyone about the incident, they would be fired on the spot. That same afternoon, Bergdoll also held a second meeting with various school administrators, including Assistant Principal Rusty Hensley, at which attendees " discussed what could have been done better" during the incident. App. at 674. Someone also brought up the fact that the School's video surveillance system covered the area of the cafeteria where Megan was sitting, and the cameras were angled such that they would have recorded the entire choking incident. Administrators can download video footage to their computers in 10 minutes, and they routinely review it anytime there is a fight or a theft. The footage is preserved for 90 days and then overwritten to conserve space on the hard drive.
The Richmond Community School Corporation reported the incident to its insurer, Indiana Insurance. On February 25, Indiana Insurance conducted an investigation " oriented toward the prospect of litigation," including on-site interviews with school personnel. App. at 928. Indiana Insurance, however, never discovered the existence of the surveillance system or the video footage. Ultimately, no one ever downloaded the video, and it was presumably overwritten. Bergdoll later testified no one watched it because " I don't think we thought there was a reason." App. at 636.
While Megan was in the hospital, Bergdoll and Hensley visited the Lyonses there. During the visit, Mrs. Lyons asked Hensley several times how long Megan had been without oxygen, and he responded " it was a very short period of time." App. at 817. Bergdoll said ...