While acknowledging the tragedy of the Woodmore Elementary School bus crash on Nov. 21, Hamilton County Schools and Durham School Services are arguing in separate filings that the federal class-action lawsuit filed against them in December should be dismissed.
Hamilton County Schools filed a 33-page response to the lawsuit Friday, shifting responsibility for the crash onto Durham, the company contracted to provide busing services to the district and employer of the 24-year-old bus driver Johnthony Walker.
The class-action lawsuit claims Hamilton County Schools, district Transportation Supervisor Ben Coulter and Durham School Services each failed to take reasonable precautions to prevent the tragedy and had a pattern of ignoring rules and regulations, leaving children in danger.
A response filed for Hamilton County and Coulter claims that no "affirmative actions" were taken that made students unsafe. The district and Coulter cannot be held responsible for failing to take action, regardless of any complaints they may have received about the driver being unsafe or alleged failures to enforce rules relating to bus safety, speed and reporting of injuries, the response claims.
"As to the real cause of [the plaintiff's] injuries — that is, Mr. Walker's driving — the complaint steadfastly alleges [Hamilton County] employees, including Mr. Coulter, took no action," according to the response.
The school district, Coulter and Durham School Services received complaints about Walker before the crash but did nothing to protect the 37 students who continued riding his bus, according to the lawsuit. It claims that Durham and the school district conspired to deprive the kids of their constitutional rights.
"This horror was foreseeable, predictable and preventable," the lawsuit claims.
Hamilton County Schools argues that none of the district's policies or regulations are associated with unconstitutional conduct, and the lawsuit just accuses the district of failing to adhere to its policies, which doesn't violate federal law. The response says there was also no deliberate indifference in the district or Coulter's actions and a pattern of abuse did not exist.
"However, these allegations do not evidence any personal or nefarious agendas on the part of the Department employees, but instead may represent, at worst, a lack of understanding or appreciation of the degree and scope of Mr. Walker's alleged behavior," the response claims.
Walker, who is not named in the federal lawsuit, faces charges of vehicular homicide, reckless endangerment and reckless driving. He is being held in the Hamilton County Jail. Police say he was going about 20 mph over the posted speed limit on Talley Road in Brainerd when he crashed the bus, twisting it around a walnut tree and killing six children.
Durham filed a 19-page response Thursday, claiming it did not violate the plaintiffs' constitutional rights and the case should be dismissed.
"The accident should not have happened; this is beyond dispute," Durham states in the response. "That said, however, plaintiffs have a proper and adequate remedy in a state court tort action."
Eight lawsuits have been filed against Durham in state court in connection with the crash, the lawsuit claims.
"Like those cases, this case against Durham is about its alleged negligence in hiring, training, and supervising [the bus driver]," the response claims. " this case is not about a deprivation of plaintiffs' constitutional rights or a conspiracy to do so, and therefore must be dismissed."
In state court, Tennessee's tort reform law limits the payout of personal damages families of the children killed in the crash can receive to $750,000. But in federal court, those tort restrictions don't exist.
The lawsuit, filed by local attorney Ronald Berke for the family of a survivor of the crash and on behalf of all the passengers and their families, claims Hamilton County Schools and Durham have joint control over the busing service to Woodmore Elementary School.
The lawsuit argues that Durham acted as an extension of the state, and thus deprived the plaintiffs of their constitutional rights to bodily integrity and to be protected from state-created danger, the lawsuit claims.
But Durham argues that it's a private company, noting two Circuit Court rulings that say a private bus company is not a "state actor." The contract between Hamilton County Schools and Durham makes it clear that Durham "maintained its status as a private entity separate from the District at all times," according to the response.
The lawsuit claims Durham and the school district conspired to deprive the kids of their constitutional rights, as they ignored the complaints made against Walker weeks before the crash.
Durham argues this claim also must be dismissed because the Woodmore students on the bus were not deprived of their rights or privileges due to their race, ethnic origin, sex, religion or political loyalty, which is what the law restricts. The kids riding bus 366 the day it crashed were not exercising a fundamental right, "they were simply going to school and returning home from school," the response claims.
Durham argues that for these reasons the federal court lawsuit filed against the company should be thrown out.
Local attorney Joseph White filed a response for Hamilton County Schools and Coulter, and attorney James Burd filed for Durham.
The Hamilton County Board of Education is also facing two additional federal lawsuits in connection with the Ooltewah High School rape case. These lawsuits allege that the district failed to update and follow policies and ignored a pattern of abuse that allowed a culture of bullying and sexual assault to fester at the school, leaving students unprotected.