PENDER COUNTY — The lawsuit involving a Pender County teacher injured by a student is awaiting an appeal decision from the courts.
The attorneys for Topsail Middle School teacher Kimberly Burns-Fisher argued the case at the Fourth Circuit on Dec. 6 to deny defendant former Topsail principal Anna Romero-Lehrer’s attempt at dismissing it. If the appellate court reverses the decision to deny a dismissal, then the suit, which has escalated to a federal level, will be dropped.
Bruce Berger, of Knott and Boyle PLLC, representing Burns-Fisher, cited constitutional protection for state-created danger as his defense. Essentially, he’s saying Burns-Fisher was put in harm’s way that could have been avoided since the school knew of the student’s history and also acknowledged Burns-Fisher was teaching alone.
Burns-Fisher sued the Pender County Board of Education, former superintendent Steven Hill, and former Topsail Middle School principal Anna Maria Romero-Lehrer following an incident in the classroom that took place on April 19, 2018.
A 15-year-old student with a history of violence attacked Burns-Fisher, the suit states. According to documents, the teacher said it caused physical and emotional damage. Burns-Fisher is seeking damages from the school system and defendants as a result.
The case, represented by Knott and Boyle PLLC, alleges the school failed to uphold its policies to require a second teacher in the classroom when a known-violent, special-needs student is in attendance.
Burns-Fisher, who had been employed by Pender County Schools since 2015, was teaching an eighth-grade language arts class during the incident. The student she had a run-in with had seven years worth of recorded aggressive incidents as documented by the school system.
From his 2015 alleged attack, Burns-Fisher said she suffered from “serious, permanent physical injuries, including eye and brain injuries, that have required ongoing medical treatment.”
The complaint filed April 2021 also states the incident caused Burns-Fisher to stop teaching.
Burns-Fisher typically instructed “mainstream” classes and was not trained in special education; however, on the day of the incident, she agreed to cover an inclusion class, meaning 10 of the 30 students in the room were designated as receiving special education.
Under Pender County Board of Education policy, when a class has 10 of 30 students with an individualized education program, two teachers must be present, and one must be trained and certified as an EC teacher.
However, the scheduled EC teacher that was supposed to join Burns-Fisher’s class that day was not there; she was absent from the workday. The complaint states principal Romero-Lehrer acknowledged Burns-Fisher was alone and asked her to proceed teaching anyway.
The student, identified in the court documents as “TB,” is at the mild end of the autism spectrum, according to the lawsuit. He receives EC services for math and language arts.
The lawsuit notes TB allegedly called Burns-Fisher a moron during her teaching session. When she asked him to approach the front of the room with his work, the student allegedly threw his book bag at Burns-Fisher, hitting her in the left side of the head.
While she picked up her walkie-talkie to call for a crisis team, TB lunged at the teacher, hitting her and grabbing the walkie-talkie. The move caused her to fall out of a chair, into a table and filing cabinet; she struck her head on the way down.
Burns-Fisher had to undergo required surgery and seeks ongoing medical treatment. She has not been able to work since the attack.
According to the complaint, TB’s record of violence began in 2011. The lawsuit indicated he was marked up for: head-butting a teacher, causing her to go to the hospital; kicking, biting, slapping and pulling a teacher’s hair, attempting to stab her with a pencil in 2012; and punching a school administrator in the eye. He also had thrown textbooks at a teacher, choked a fellow student, plunged a pencil into a teacher’s arm and spit in a teacher’s face.
It wasn’t the first time TB had attacked Burns-Fisher, specifically, either. In October 2017, he kicked over a trash can, spit something at her and slammed the door in her face.
That following December, the student began circling Burns-Fisher “like prey” and lunged at her, the lawsuit states. The playground was cleared and a crisis team was called.
The same month he hit her in the back, causing injuries that required a hospital visit, when she asked him to return another student’s possession.
TB was suspended for two days following the December 2017 incident. Burns-Fisher requested he be removed from her classes but claims the principal refused.
As a result, Burns-Fisher is holding both the principal and superintendent liable for injuries, which have also resulted in her loss of income and recurring medical expenses, documents indicate.
Regarding the April 18 episode, both principal Romero-Lehrer and the Pender County Board of Education, including Hill, state there is no “two-teacher” rule in the board of education’s policies.
Romero-Lehrer also denied TB had any “documented” history of seriously injuring any school employee or classmate.
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.
Based on Pender County Board of Education’s district response, Burns-Fisher was paid workers’ compensation, as well as “episode-of-violence” pay following the incident. The amount she received was not disclosed.
On June 14, Romero-Lehrer’s attorneys, Crossley McIntosh Collier Hanley and Edes, PLLC, filed a motion to dismiss the case. The motion states “the plaintiff’s complaint fails to state a claim upon which relief can be granted.” In other words, the dismissal claims Burns-Fisher failed to present sufficient facts that would hold the defendants’ liable. It also alleges the former principal has “qualified immunity,” meaning she is protected for liability for performing her job reasonably.
On Sept. 15, 2021, Burns-Fisher voluntarily dismissed the charges against Hill, in personal capacity only. He is still being charged for his position as superintendent.
The case was first filed in District Court for the Eastern District of North Carolina, Southern Division on April 9, 2021. When Romero-Lehrer’s motion to dismiss was denied, she appealed to the U.S. Court of Appeals Fourth Circuit on Jan. 5, 2022.
If the case is dismissed in the Fourth Circuit, the suit against Romero-Lehrer would be dropped, with the possibility of appealing to the supreme court of the U.S; however, attorney Ellis Boyle said it’s rare the supreme court will grant a petition to review.
While the results of Romero-Lehrer’s appeal await a decision, the suits against Hill and the board of education are on hold.
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