MUSD to pay $275,000 in molestation lawsuit settlement - Tucson Local Media: Import

MUSD to pay $275,000 in molestation lawsuit settlement

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Posted: Tuesday, May 31, 2005 11:00 pm

June 1, 2005 - After a year and a half of constant litigation, attorneys representing the Marana Unified School District reached a $275,000 settlement agreement April 25 in the lawsuit involving a Thornydale Elementary School student who was allegedly abused by her bus driver.

In a trial that was scheduled to begin next week, district officials would have had to defend themselves against allegations of negligence in allowing a 10-year-old female student to be touched and tickled inappropriately by her male bus driver and failing to immediately report the allegations to law enforcement in May 2003.

With two years of court filings and deposition transcripts stack-ed up inside Pima County Superior Court, the district's insurance carrier chose to pay the more than quarter-million-dollar settlement instead of fighting the $1.2 million lawsuit filed by the girl's parents in on Dec. 16, 2003, court records show.

Attorney James Stuehringer, who represented the family in the lawsuit, said the terms of the settlement agreement are confidential, and he couldn't comment on the case or say whether the district is admitting any wrongdoing.

"That was one of the provisions of the settlement agreement," he said. But he added, "I think my clients were pleased (with the settlement). Actually, I'm sure they were pleased, lets put it that way, and certainly happy to have the litigation over."

The lawsuit claimed the district acted negligently in its supervision of the bus driver, that the district had been warned of the driver's activities and took no action, and that, because the district conducted its own investigation before contacting police, it tainted the police investigation and prevented the driver from being prosecuted.

The three-year veteran bus driver was accused of repeatedly and roughly tickling the girl, giving her wedgies and touching her bottom and bare chest in May 2003. The driver was arrested and charged with sexual abuse of a minor, a class 3 felony, though the charges were later dropped for unspecified reasons.

The school district was admonished by a Pima County Sheriff's Department investigator for not immediately reporting the accusations and for conducting its own interviews of the victim and child-witnesses.

Shortly after the allegations were made, the bus driver resigned and the Arizona Department of Public Safety suspended his driver's certificate. DPS later conducted an investigation but no criminal charges were brought against the district.

The girl and her family are not being named by the EXPLORER because of the nature of the allegations. The bus driver is not being named because he was never criminally prosecuted.

District officials knew little information pertaining to the settlement when questioned last week because they say the case was completely turned over to the district's insurance carrier, which is covering all costs.

"The district's liability insurance has covered that whole case and I don't even have any details because they would not even give it to our attorney," said interim Superintendent Jane Pryne. "I asked what the settlement was and they said, 'I cannot tell you.'"

Carl Hazlett, of the Hazlett Law Firm in Tucson, handled the case for the district but did not return several phone calls last week seeking comment on the settlement.

Board President Bill Kuhn said the district governing board never gave direction to legal counsel regarding the lawsuit and said he hadn't seen any information regarding a settlement. He said he didn't think the board would be required to be involved because the district's insurance is covering the costs.

"If it's a situation where the district has to spend money then of course there'd have to be a vote, but if its being handled strictly by the insurance company then we don't have to vote," he said.

According to a May 12 amended settlement order, $20,000 will go specifically to the girl's parents, and the girl will receive the remainder of the $275,000. Court records show both parties agreed to conduct off-the-record communications and the case is dismissed with prejudice. Each side will bear its own attorney's fees, and all future hearing dates are vacated.

The case saw regular action on an almost weekly basis for the past year and a half as attorneys from both sides were continually filing motions and countering opposing arguments.

According to a Feb. 23 deposition, the girl gave a sworn statement that her bus driver tickled her "rough" underneath her shirt and had inappropriately touched her 11 times. The girl said the bus driver was nice to her, but she didn't like being tickled and asked him to stop when the tickling became rough.

In an Aug. 16, 2004, deposition, the girl's father testified that his daughter, fearing the bus driver, had begun using her scholastic workbook to shield herself from his advances.

"There was a time where she went to the back of the bus to avoid him," he testified. "There was a time when she grabbed the broom to guard against his advance or efforts to tickle her."

In an Aug. 16, 2004, deposition, the girl's mother testified that her daughter told her, "He tickles me on my knee too and sometimes he gives me wedgies … he follows me through the bus." It was then that the mother said she broke into tears. The mother was the first one to make a 9-1-1 call on May 10, 2003, three days after her daughter mentioned the allegations while being tucked into bed May 7, 2003, court records show.

In an April 26, 2004, letter to Stuehringer, Richard Hinton, a licensed psychologist with special training in child clinical psychology, stated he had performed a psychological evaluation of the girl in October 2003 and found that she exhibits "some, though not all, of the characteristics that are generally observed in child sexual abuse victims."

According to court records, the tickling often began early in the morning and stopped by the time other students got on the bus. But at least one other student said he witnessed what he considered inappropriate contact between the bus driver and the girl.

Court records show the girl circled the center of the chest on an anatomical diagram when asked where she was touched under her clothes. According to statements filed by the district in court, the district believes that the circled area does not qualify under the definition of "breasts" and refuted the term "molestation."

The district maintained that the tickling was "in no way sexual or illegal, although it may not have been a smart thing to do in such a litigious age," court records state, further adding "it is possible that his hand slipped under her shirt since he was tickling (the girl) as she passed him entering the bus."

The parents brought their concerns to the school the morning after their daughter told them of the tickling on the night of May 7, 2003. School officials admit they then conducted their own investigation into the allegations on May 8, 2003.

In an Aug. 13, 2004, deposition, Thornydale Principal Lynnette Brunderman testified that she heard about the allegations on the morning of May 8, 2003, and, later that day, she personally questioned several students on the girl's bus. Brunderman took rough handwritten notes that neither she nor attorneys could make sense of during her deposition.

Brunderman gave a sworn statement that she was aware of the school district's policy requiring school personnel to immediately report to law enforcement any sexual allegations involving a minor. The district's policy, specifically using the word "immediately," had been in effect since Oct. 27, 1997, according to court records.

"My understanding of immediate at that time was with a 24-hour or 48-hour period," Brunderman stated, admitting that she did not report the allegation even within 72 hours after being notified of the allegations.

According to Brunderman's testimony, the parents of the young girl also have two other children who went through Thornydale and are well-respected, so she never doubted the family's concerns. Brunderman said the girl was a good student, was involved in school activities and enjoyed learning.

The district's attorneys defended district officials, claiming the parents had a duty to report the allegations to police because the girl told her parents the night before they told the school.

According to statements filed April 18, the district's attorneys stated that the district called the girl's parents into their offices to make a police report May 9, 2003, but the parents postponed making the report until after a slumber party that was scheduled for that weekend.

"The (parents) violated the statute threefold by doing nothing the first day, calling the school instead of the police on the second day, and by postponing the police report to throw a slumber party on the third day," the district's attorneys stated in court records.

"If the (plaintiff's) strict reading of the word 'immediately' in the reporting statute is accepted, they themselves have violated the statute and are not entitled to recover (damages)," the district's attorneys further stated.

District attorneys claim that the district learned of the allegations May 8, 2003, and legally "caused a report to be made," under the definition of the law, by informing parents they must contact the police.

District spokeswoman Tamara Crawley said the district has since taken measures to better train teachers on the mandatory reporting laws. Four DeGrazia Elementary School employees were indicted on charges of violating mandatory reporting laws in September when they failed to immediately report a kindergartner's claims that her father sexually abused her.

"Our district enhanced and modified training curriculum regarding mandatory reporting to require the training of district employees," Crawley said. The district now gives employees handouts on the law and brings in speakers from various law enforcement agencies "to ensure all staff are trained and reporting per law," she said.

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