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Downing v. Brown6/11/1996
JUNE 11, 1996
In this appeal, appellant Ruby Lee Downing, individually and as next friend of her minor daughter Teresa Maria Gutierrez (Teresa), seeks reversal of a take-nothing summary judgement in favor of appellees Lucy Brown, Neal Logan, Ophelia Herrera (the individual appellees) and Lubbock Independent School District (LISD). The appeal arises from a proceeding in which appellant filed suit against appellees for injuries to Teresa, a LISD student, sustained in two assaults by another student attending her school.
The facts asserted by appellant, and additional but uncontroverted facts asserted by appellees, are as follows: In October 1991, Teresa was a sixth grade student of appellee Ophelia Herrera. Another student, Leslie McDade (Leslie), and some of Leslie's friends made several threats against Teresa. At her mother's instruction, Teresa told Herrera of the threats on October 10, 1991. Herrera kept Teresa and one of Leslie's friends, Tamasha Green (Tamasha), after class to attempt to settle their differences. At the end of the meeting, Herrera was satisfied that the problem had been resolved, but Teresa felt that Herrera's action "only made it worse." Teresa asserts that Herrera refused her requests to speak to the school principal, appellee Lucy Brown, about the threats.
On October 16, Leslie threatened to assault Teresa. Teresa related the event to Herrera in a class writing assignment. Herrera took no action in response to Teresa's paper other than to note in the margin that she should get new friends. On her way home from school with her younger brother, Teresa was attacked by Leslie who "beat [Teresa's] head against the concrete sidewalk" and kicked her several times. Although Tamasha and others were present, only Leslie committed the assault. A teacher who was leaving the school saw the attack, intervened, and took Teresa back to school to see Principal Brown.
By affidavit, Brown stated that she was not aware of any conflict before the afternoon of October 16, 1991. When Teresa was brought to her office, Brown "observed no outward signs of major physical injury on Teresa." Brown's response was to suspend Leslie, Tamasha, and two other girls for three days; however, Teresa asserts she spent ten days in the hospital and underwent several surgeries to ameliorate her injuries.
Teresa did not return to school until May 1993. When appellant sought to enroll Teresa in LISD's Hutchinson Junior High School because of its special programs, LISD school counselor Nancy Crow advised her that Leslie was a student at Hutchinson. Crow offered to enroll Teresa in another school with similar programs. Appellant declined the offer. Because of the limited number of classes, efforts to keep the girls apart were not entirely successful and Teresa was placed in one class with Leslie. On the first day of class on May 10, 1993, Tamasha told Teresa that "she would not get out of the hospital this time." When appellant told the school counselor and an assistant principal of the threat, they informed Teresa's teachers of the conflict and asked them to "watch for any signs of problems."
On May 12, Teresa was pushed into a stairwell wall, which she said aggravated her previous injuries. While Teresa was unable to determine who pushed her, Leslie and Tamasha were both present at the time. When Teresa reported this event to Neal Logan, he asked assistant principal Edwards to investigate. Edwards asked Teresa to identify any possible witnesses using a school photo roster. As a result of Teresa's identification, Edwards interviewed Leslie, Tamasha and other students, all of whom denied the incident. Teresa withdrew from school on May 17, 1993.
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