Sunday, February 25, 2024

Judge denies Pender schools’ move to dismiss suit against former teacher injured by student

On Monday, Judge Tiffany Powers denied Pender County Schools motion to dismiss a case filed by a former teacher who was attacked by a student in 2018. (Port City Daily/Amy Passaretti Willis)

PENDER COUNTY — While a case involving a middle school teacher who was injured by a student was quashed on the federal level, it’s still in motion locally. 

READ MORE: Court sides with Pender principal, grants immunity in student-teacher attack case

ALSO: Pender teacher sues district for injuries from known-violent student, awaits appeal

Monday morning in New Hanover County Superior Court, Judge Tiffany Powers heard arguments from Pender County Schools attorney Brandon McPherson to dismiss a civil case against the board of education and former superintendent Dr. Steven Hill.

Kimberly Burns-Fisher was an eighth-grade teacher at Topsail Middle School in 2018 when a 15-year-old special-education student, allegedly known to be violent, attacked her. She has not been able to work since then and has sued the board of education, Hill, and Topsail Middle School principal Anna Romero-Lehrer for damages.

When Burns-Fisher filed her civil complaint in April 2021, she also filed on the federal level. In January 2023, her attorney Bruce Berger argued in federal court the school and related parties failed to protect Burns-Fisher’s constitutional protection for state-created danger, meaning the incident could have been avoided.

One month later, the U.S. Fourth Circuit Court of Appeals ruled in favor of the defendants and dismissed the case entirely on a federal level. The decision states Burns-Fisher failed to provide enough evidence the incident violated her constitutional rights. And if she had, the parties still hold qualified immunity (Hill and the board) and principal immunity (Romero-Lehrer).

The case on the district level, though, remains active.

McPherson stated Monday the case should be dropped for lack of jurisdiction. He also pointed to workers’ compensation as the statutory remedy for employees injured on the job.

He also stated Burns-Fisher was already receiving workers’ compensation for the April 2018 incident. By state statute, she is eligible to receive 66-2/3% of her average weekly wage, prior to the injury. 

“Outside of that, only egregious cases under the Woodsen case law allow the plaintiff to come after the employer for those funds,” McPherson said.

The 1991 North Carolina Supreme Court case Woodson V. Rowland provides an exception to the “exclusive remedy” provision — that injured employees are limited to compensation benefits within North Carolina Workers Compensation Act and cannot sue an employer for additional money. 

The Woodson ruling would apply  if an employer intentionally engaged in misconduct knowing it could cause injury or death to an employee.

“I do not believe that this case did that,” McPherson said. “On its face, the plaintiff does not reveal anything as far as egregious misconduct on behalf of the board or behalf of the superintendent.”

Burns-Fisher’s attorney Bruce Berger disagrees.

He pointed to the specific allegations within the Burns-Fisher complaint that point to wrongdoing by Hill and the board of education.

Berger said Burns-Fisher is not a special education teacher and the Pender County Board of Education has a policy that requires a second teacher present when a classroom has a certain percentage of special education students. Pender County Schools asserts no such policy exists.

On the day of the attack, there were 10 of 30 students in Burns-Fisher’s language arts class who also received special education. There was no second teacher present at all, let alone one certified as an EC teacher, as is school policy.

Burns-Fisher alleges principal Romero-Lehrer knew a second teacher was not present and told her to teach anyway.

“And within 50 minutes, she was beaten severely,” Berger said.

He also noted the student, known in the complaint as “TB,” had a record of violence — more than a dozen instances against various staff reported to the school system since 2011.

Berger said teachers met with Romero-Lehrer about the situations, and also noted “there was no way” the superintendent and board of education were not made aware of the complaints.

“The board of education has a long list of policies regarding the safety of students and staff as paramount,” Berger said. “Our position is, because of the specific knowledge, all of their policies were violated.”

The complaint lists roughly 14 board of education policies that were violated over the course of TB’s attacks on students and teachers, including not providing a safe environment and tolerating dangerous behavior.

While Burns-Fisher has received some compensation for missed work and medical expenses, Berger argues it’s limited and does not cover emotional damages and suffering endured.

Berger told Port City Daily a specific amount for damages has not yet been requested due to the ongoing nature of the case. If it ever makes it to trial, the “value” would be based on a number of factors at that time. That could include whether Burns-Fisher is still out unemployed,and if not, how much she is earning and what her medical costs and care might still be.

“The best news would be if she got better and got back to work,” Berger told PCD, adding Burns-Fisher suffered significant brain injury and is still unable to work.

Judge Powers dismissed McPherson’s motion to deny Tuesday. Romero-Lehrer is still represented by Blanchard, but he has not yet filed a motion for the court calendar. 

McPherson has 30 days to file an appeal with the North Carolina Court of Appeals, which Berger told Port City Daily is expected to happen. If Romero-Lehrer’s case is heard and appealed in the same time period, the two would likely be consolidated on the state appeal level, Berger explained.

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