Attorney asks for lawsuit from Ooltewah victim against school board be dismissed

Ooltewah's code of silence created
a culture of negligence

The Hamilton County Board of Education has responded to the lawsuit filed against them in September by the main victim in the Ooltewah High School rape case.

In the 22-page response, the attorney representing the school board, Charles Purcell, asks that the case against the board be dismissed.

The school board members "acted as reasonable and prudent ... in furtherance of their discretionary duties," the response claims. 

The lawsuit filed against the school board cites a long and violent history of hazing and sexual abuse of male student athletes. The 23-page lawsuit accuses school district and Ooltewah High School administrators and staff of knowing abuse was taking place and failing to protect students.

The plaintiff in this case is a former Ooltewah High School freshman who was raped by his basketball teammates with a pool-cue during the team's trip to Gatlinburg, Tenn., just days before Christmas.  The victim, 15 at the time of the attack, sustained injuries so severe he was rushed to the hospital for emergency surgery. 

The victim and his mother filed the lawsuit against the Hamilton County Board of Education, former Ooltewah High School Principal Jim Jarvis, the school's former Athletic Director Allard "Jesse" Nayadley and former head basketball coach Andre "Tank" Montgomery.  

In the lawsuit, the plaintiffs asks that a jury decide the amount of damages the victim is entitled to receive from each defendant.

The response Purcell filed this week in federal court is not for the individuals named in the lawsuit, but just the school board. 

In its response, the board says it isn't responsible for the alleged injuries the victim received from three older teammates, saying these players are the "sole and proximate cause of the alleged injuries sustained by the Plaintiffs."

Three former Ooltewah High School students have been convicted in connection with the pool-cue rape of the Plaintiff. The oldest of the perpetrators, who turned 18 soon after the attack, was convicted of aggravated rape and aggravated assault in Sevier County Juvenile Court and will be released from juvenile detention in coming weeks. The two other players, 16 at the time of the attack, were convicted of aggravated assault and will also be released soon. 

The board's response argues that if anyone should have been aware the three boys may have committed this attack it would have been their parents, not the school board.  

"The Plaintiffs have no legally cognizable action against [the school board] for negligent supervision," the response states. 

The lawsuit against the board claims it failed to maintain adequate policies and training regarding student hazing and bullying. The board also did not adequately train employees about mandatory reporting of abuse, which according to the lawsuit created a climate where such misconduct was tolerated and encouraged due to a lack of consequence.

The lawsuit claims that the board's failure to have the proper policies and training in place means they should not be protected by the state's Governmental Tort Liability Act, which protects governmental boards from lawsuits and limits the amount of damages that can be paid. Attorneys say the board failed to protect the victim, and that Jarvis, Nayadley and Montgomery's negligent actions provide legal grounds to remove the board's immunity.

The board's response says it should be covered under tort law, as its members acted in the "scope of their employment."

"Therefore, the Plaintiffs may not recover from this Defendant," the response continues. 

Also in the response, Purcell denies the plaintiffs' complaints and allegations, and cites a lack of evidence. 

Responding paragraph by paragraph to the lawsuit, Purcell repeats many times the phrase: "Denied on the grounds that this Defendant is without sufficient information or knowledge to either admit or deny the allegations and strict proof of same is hereby demanded."

A response like this is not uncommon in a federal civil court case, and it's expected that a separate response will be filed on behalf of the former Ooltewah High School employees named as individuals in the lawsuit.

The attorneys representing the plaintiff are Douglas Fierberg and Monica Beck of the Fierberg National Law Group based in Washington, D.C., and Eddie Schmidt of Nashville.

Purcell is based in Jackson, Tenn., and works at Purcell, Sellers & Craig, Inc.

See Saturday's Times Free Press for the full story.