Bus company moves to dismiss trauma lawsuits filed by Woodmore Elementary educators

Bus company moves to dismiss trauma lawsuits filed by Woodmore Elementary educators

April 10th, 2018 by Zack Peterson in Local Regional News

Community members hold candles during a community vigil to remember victims of last year's Hamilton County school bus crash on Talley Road on Tuesday, Nov. 21, 2017, in Chattanooga, Tenn. Parents, friends, and supporters gathered near the spot where one year ago Tuesday, six children from Woodmore Elementary School were killed after bus 366 overturned on the residential street.

Photo by Doug Strickland /Times Free Press.

A group of educators says the aftermath of the Woodmore Elementary School crash that killed six students has traumatized them. But if they want Hamilton County's bus provider to pay for their emotional distress, it's going to take more than their word.

According to public documents, Durham School Services attorneys are trying to dismiss five infliction of emotional distress lawsuits that current and former Woodmore educators filed in connection with the Nov. 21, 2016, crash on Talley Road that involved 37 of their students.

Specifically, Durham attorneys are questioning two things: Did those employees witness the crash itself? And, can they have a claim if they didn't have a child, or a personal relationship with somebody on bus 366?

Either way, Durham attorneys say, Tennessee law is on their side: The educators can't prove the private bus company acted with any intentional malice. "Reckless or gross negligence alone is not enough," attorney Michael Campbell wrote in a recent motion. "While the facts of this case are undeniably tragic, the 'something more' required for a finding of outrageousness is absent here."

The educators' attorneys, Arthur Grisham and Ronald Berke, could not be reached for comment Monday. But the Tennessee Supreme Court has previously ruled that a relationship "is not necessarily limited to relationships by blood or marriage," local court documents say.

And other documents detail the educators' post-crash turmoil: After seeing their students suffering on scene or at the hospital, some struggled to hold their lives together and transferred schools. Others wrestled with Durham over medical bills. More than a year later, one relies on a service dog to get through daily activities. They say the common link is Durham, which should have known about the numerous complaints against Johnthony Walker, the driver behind the wheel during the Talley Road crash.

More debate is coming May 7 in Hamilton County Circuit Court before Judge J.B. Bennett, who must decide whether to keep the cases alive.

Since the crash, Bennett has presided over most of the 30-or-so lawsuits filed by parents, loved ones and educators. Late last month, he ordered Durham to turn over evidence that law enforcement collected on the scene that night, such as speeding data and bus camera footage.

Bennett previously sealed that evidence from plaintiffs' attorneys so Walker could have a fair trial in Hamilton County Criminal Court. Now that Walker has been convicted of six counts of criminally negligent homicide and using his cellphone in connection with the crash, attorneys are scheduled to depose him and other key county and Durham officials in early May.

Before that, Walker is scheduled for sentencing on April 24 in Hamilton County Criminal Court.

Durham doesn't comment on pending litigation, but court records show the company has settled three cases in 2018. The monetary amounts in two of those cases are confidential. In 2017, Durham reached agreements in five other cases and has previously offered to mediate with families.

Now that plaintiffs' attorneys can go after more evidence, Durham may have an uphill battle, too. Prosecutors didn't use every piece of evidence that law enforcement collected at Walker's criminal trial so it could reveal new parts of Walker's pre-crash history.

Plaintiffs' attorneys believe they can also get more monetary damages because of Walker's felony conviction. A 2011 Tennessee law says a suing person can get only $750,000 for non-economic damages such as pain and suffering. But that cap disappears, attorneys say, when someone who commits a felony offense hurts another person.

Hu Hamilton, a plaintiffs' attorney who is not involved in the case, said he would argue it this way: "Those with authority over the person who committed the felony should be held equally responsible. That would include the felon's employer, and any others who had the right to control the time, manner and method of work he was performing."

Elsewhere in the case, a judge and Hamilton County's top prosecutor tussled in February over whether the prosecutor could dismiss harassment charges against one of the Woodmore victims before she was arrested. Court documents claimed the mother, whose child died in the crash, told a principal over the phone that she would bring a gun to an area school after one of her sons was suspended.

According to a letter he wrote, Hamilton County General Sessions Court Judge Gary Starnes said he agreed to dismiss a warrant for her arrest after District Attorney General Neal Pinkston called and told him it was a misunderstanding. But after reading the allegations a few days later, Starnes said he reissued the warrant because he felt the facts were more severe than Pinkston led him to believe.

A third judge, Tom Greenholtz, resolved the matter by saying that Pinkston has the power to decide which cases he does and doesn't want to pursue. "Except under the most exceptional circumstances, the judiciary does not have the authority to prevent the district attorney from dismissing a prosecution," Greenholtz wrote.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.