The opinion of the court was delivered by: William B. Mitchell Carter United States Magistrate Judge
Defendants Bradley County Board of Education (BCBE); Bradley Central High School (BCHS); Robert L. Taylor, Superintendent and/or Director of Bradley County Schools; Robert and Willardean Malone, individually d/b/a Malone Busing, Inc. (the Malones); and Ada Hastings, as bus driver for Bus 23, have moved for summary judgment in the instant action. [Doc. 73]. This case arises from a tragic incident in which Rocky Joe Dockery (Rocky or decedent), a minor, died after leaping from the window of a moving school bus. Plaintiff asserts state law negligence claims and various claims under 42 U.S.C. § 1983 and § 504 of the Rehabilitation Act of 1973 (§ 504), 29 U.S.C. § 794, alleging the defendants failed to provide Rocky with appropriate educational accommodations resulting ultimately in his death. For the reasons stated herein, the defendants' motion for summary judgment is well taken, and an order shall enter granting it.
At approximately 3:40 PM EDT on Friday, October 1, 2004, Rocky Dockery, a fifteen year-old freshman at BCHS, boarded a bus at school to go home. The bus was driven by defendant Ada Hastings. (Deposition of Gary Austin, 40:11, Exhibit 11, p. 79.) The bus departed BCHS at approximately 3:45 PM EDT. (Id.) At approximately 4:00 PM EDT, Rocky informed the student sitting next to him, Phillip Henry, that Rocky wanted to get off at a non-designated stop closer to his home so that he could get home in time to either play video games or go to a BCHS football game. (Id. at 40:11, Exhibit 11, p. 83.)
According to Ms. Hastings and the Board of Education's own internal investigation, as the bus approached Goodwill Road, Rocky left his seat, and approached Ms. Hastings. He appeared agitated, and he asked to be let off at Goodwill Road, which was not a designated stop. (Id. at 40:11, 42:16-21, Exhibit 11, p. 83; Deposition of Ada Hastings, 31:2-32:16, 56:25-57:2.) Ms. Hastings denied Rocky's request and explained that she could not let him off at a non-designated stop without authorization from a supervisor at the BCBE Central Office. (Deposition of Ada Hastings, 31-32, 56-57.) This exchange occurred as bus #23, moving at 40-45 miles per hour, approached and traversed the intersection of Spring Place Road and Goodwill Road in the middle of a curve. (Id. at 17:16-22, 32:9-34:21, 36:19-37:5, 41:1-5, 48:7-49:7; Deposition of Gary Austin, 40:11, 42:22-24, 46:2-9, Ex. 11, p. 79.) As Ms. Hastings passed Goodwill Road, immediately after Ms. Hastings told Rocky she could not drop him off, Rocky announced, "Fuck it.I'll jump!" and simultaneously turned toward the third seat on the passenger side of the bus, removing an outer garment and throwing it as he moved straight to the window. Ms. Hastings was watching Rocky in her rear view mirror. (Id.; Deposition of Ada Hastings, 17:16-22, 32:9-34:21, 36:19-37:5, 42:1-5, 48:7-49:7, 57). Rocky climbed up the third or fourth seat, and with his chest facing the ground, swung his right foot out of the window on the passenger side. (Id. at 34:22-36:18). Ms. Hastings started braking when Rocky stepped up on the seat and hit the brakes "really hard" when Rocky placed his right foot out the window. (Id. at 41:6-19, 43, 57:7-16.) At this point, at least one other student on the bus tried to grab Rocky but was unsuccessful. (Id. at 45:8-16, 57:23-58:1) When the second foot went out the window, Ms. Hastings was hitting the breaks "really hard." (Id. at 43). Rocky held on to the slowing bus by gripping the lower part of the window with both hands and with his legs pulled up to his chest while facing the rear of bus #23. (Id. at 43, 50:16-52:12.) Ms. Hastings could see Rocky now in her side view mirror. (Id. at 50). Unable to maintain his grip for more than a second or two, Rocky fell from the bus. (Id.) Rocky landed on the back of his head and his shoulders, rolled several times, and came to rest in the drainage ditch. (Id. at 49:25-50:8, 52:20-53:8, 58:2-7.) Everything happened "very fast." (Id. at 53). Ms. Hastings brought the bus to a complete stop, immediately exited the bus, and went to Rocky's aid. (Deposition of Ada Hastings, 43:24-44:10.) The driver of bus #60, which was directly behind Ms. Hastings' bus, called 9-1-1 as he ran to Rocky's position. (Deposition of Gary Austin, 40:11, Ex. 11, pp. 79, 85.) Two nurses who were nearby provided emergency treatment to Rocky until EMS personnel arrived on the scene at approximately twelve minutes later. (Id. at 40:11, Ex. 11, p. 79.) Approximately thirty minutes later, a LifeForce helicopter arrived and airlifted Rocky to the Trauma Unit at Erlanger Medical Center in Chattanooga. (Id. at 40:11, Ex. 11, p. 85.) Rocky suffered severe injuries and was removed from life support on October 2, 2004. (Id. at 40:11, Ex. 11, p. 79.)
Plaintiff has submitted evidence which augments, and in some matters varies, in certain respects from Ms. Hastings' version of events and the Board of Education's internal investigation concerning the incident of October 1, 2004. BCHS student Cody Easley rode the bus with Rocky on October 1, 2004. Country music was being played loudly in the bus as was customary. Cody did not know Rocky had left the bus until after the bus stopped. (Affidavit of Cody Eugene Easley at ¶ ¶ 4-7). BCHS student Andrew Murphy also rode the bus with Rocky on October 1, 2004. (Affidavit of Andrew Murphy at ¶ 7). Andrew saw Rocky walk up to the bus driver and say something quietly, then turn around and come back to his seat. Andrew and another friend were trying to figure out what made Rocky upset. Two other students began taunting Rocky and saying, "Jump, you won't jump." Rocky became extremely upset and went to the bus driver again. Andrew then heard Rocky scream, "Fuck it then, I'll just jump." Rocky turned around and ran down the aisle of the bus and proceeded to climb out the window. (Id. at ¶ 7-11).
Ryan Crumbly was in the bus directly behind the one transporting Rocky on October 1, 2004. (Affidavit of Ryan Christopher Crumbly at ¶ 4). He saw what appeared to be someone climbing out of the window of the bus in front of his bus. He then realized that half of the person's body was hanging outside the window and then fell to the ground and rolled. (Id. at ¶ 4-5). Crumbly stated, "I remember the brake lights on the bus in front of mine being on at the same time as [Rocky] was halfway out of the window." (Id. at ¶ 6).
Plaintiff has submitted the affidavit of a school transportation expert, Carlisle Beasley. Mr. Beasley stated:
In reviewing the forensics testimony, the pathology report, and statements at the scene, it appears that the physical injuries to Mr. Dockery were to his head and shoulder areas, which would tend to show the brakes were not applied by Ms. Hastings until after Mr. Dockery had exited the bus and was hanging from the outside. (Affidavit of Carl Beasley at ¶ 6). According to Mr. Beasley, Ms. Hastings acted with reckless disregard for Rocky's safety by failing to brake immediately after Rocky announced he was going to jump. (Id. at ¶ ¶ 4, 7). Ms. Hastings also failed to follow "specific bus transportation practices" by playing the music so loud that Ms. Hastings "was unable to take corrective action in a timely fashion due to the noise level being so high as to interfere with any notice of Mr. Dockery's actions and/or other student [sic] attempting to notify the bus driver of such actions." (Id. at ¶ 9).
The BCBE's school district is a rural school district in southeast Tennessee; approximately 10,000 students attend 16 elementary, middle, high, and adult learning schools, including Taylor Elementary School (Taylor), Lake Forest Middle School (LFMS), and BCHS. In each school year since 2003-2004, approximately ten percent (10 %) of BCBE students have received special education or related services. (Affidavit of Vicki Beaty at ¶ 4.)
In BCBE schools, BCBE employees engage in a pre-referral process to try preliminary accommodations before referring a child for a special education evaluation. (Id. at ¶ 5). BCBE's pre-referral and referral processes documented for the 2005-2006 school year were in place for and applied to the 2004-2005 school year and were comparable in scope to those used in the 1995-1996 through 2003-2004 school years. (Id. at ¶¶ 7-8.) If a child is not eligible for special education or related services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et. seq., BCBE employees who participate in the appraisal process will suggest that other school officials consider the child for non-IDEA accommodations such as those available under § 504. (Id. at ¶¶ 9-10; Deposition of Dinah Bivens, 40:24-41:13; Affidavit of Randall Ferguson, ¶ 9.) The interventions developed, implemented, and evaluated as part of the pre-referral process are highly similar and often identical to the accommodations developed and provided to § 504-Only children. (Affidavit of Randal Ferguson at ¶ 14; Affidavit of Vicky Beaty at ¶ 11.)
In 2004-2005, BCBE was commended by the State of Tennessee for having an outstanding "child-find" initiative. (Affidavit of Vicki Beaty at ¶ 13.) As in previous years, BCBE's "child-find" initiative included announcements broadcast on multiple television and radio stations; flyers posted in public areas like the post office, courthouse, and every BCBE school facility; flyers posted in private areas like Wal-Mart; community "fun days" specifically geared towards pre-school children; announcements published in local newspapers; and announcements published in school materials, such as school calendars or student handbooks. (Id. at ¶ 14.)
BCBE contracts with owners of school buses-like the Malones-to service BCBE, and the contractors and drivers must comply with Tennessee state statutory and regulatory requirements regarding the operation of school buses-such as safety inspections of vehicles and licensing requirements. (Deposition of Willardean Malone, 6:16-6:22, 12:20-13:24; 19:11-18; Deposition of Gary Austin, 8:19-19:25, 24:21-25:19.) If an Individual Education Plan (IEP) or § 504 Plan involves the provision of special education transportation services for the child, BCBE uses its own "short" buses to transport the child, and transportation personnel have a need to know the details of the child's situation and are either involved in developing the IEP or § 504 Plan or informed of the special transportation needs of the child. (Austin dep. at 20:1-24:19; Affidavit of Vicki Beaty,¶ 12; Affidavit of Randell Ferguson,¶ 13.)
1995-1996 through 2002-2003 School Years Rocky started kindergarten at Taylor in 1995 and remained there through the fifth grade. During this time, he lived with his maternal great grandparents/adoptive parents, George and Geraldine Dockery (hereinafter "Mr. Dockery" and "Mrs. Dockery"). (Deposition of Kathy Hill, 20:15-21:9.) Rocky was promoted from third to fourth and fourth to fifth grades for non-academic reasons. (Affidavit of Shalanda Mohan, ¶¶ 9-10.) According to Rocky's band teacher in seventh grade, Rocky never presented classroom behavioral problems. (Affidavit of Ricky Donegan, ¶¶ 7-8.) At the end of seventh grade (2002-2003 school year), Rocky was identified as an "at risk student" by LFMS officials, but by the end of seventh grade, Mr. and Mrs. Dockery did not seek a special education referral or transportation accommodations for Rocky. (Affidavit of Ritchie Stevenson, LFMS Principal, ¶ ¶ 5 & 6; Affidavit of Randall Ferguson, ¶12.) Throughout this time, Rocky had average T-CAP scores, meaning his scores fell somewhere between the 25th and 75th national percentile. (Deposition of Daniel J. Reschly, Ph.D., 126:14-133-4.)
In June or July 2003, Rocky went to live with Steve and Stacey Dockery (and attend schools) in Polk County, Tennessee, after Mr. Dockery died and Mrs. Dockery was placed in a nursing home. (Deposition of Kathy Hill, 15:1-20.) On January 8, 2004, Rocky began seeing Richard A. Causo, M.D. ("Dr. Causo"), a behavioral pediatrician in Chattanooga, Tennessee, who diagnosed Rocky with attention-deficit hyperactivity disorder-inattentive type along with anxiety/depression and prescribed Effexor. (Affidavit of Greg Kyser, M.D., Exhibit A, p. 9.) By January 28, 2004, Dr. Causo thought Rocky might have bipolar disorder and prescribed Zyprexa. (Id.)
At the end of January 2004, Rocky had a disagreement with Steve Dockery, and went to live with his maternal great-aunt, Ms. Hill, her husband, Donald Hill (hereinafter "Mr. Hill") and Rocky's biological sister, Maigen Grisby about a week later. (Deposition of Kathy Hill, 17:19-23, 21:6-22:23.) On February 9, 2004, Rocky transferred to LFMS, where he was advanced to the eighth grade for non-academic reasons. (Id.; Affidavit of Ritchie Stevenson, ¶ 7.) When Ms. Hill signed Rocky up for school at LFMS, she informed an LFMS Guidance Counselor, Kristy Alicie, that Rocky was on medication for bipolar disorder but did not ask LFMS officials to look into providing Rocky with special education services or transportation accommodations. Ms. Hill stated Rocky was responding well to medication and did not indicate he was emotionally unstable or that he had been subjected to harassment in the past by his peers. (Deposition of Kathy Hill, 25:12-26:13; Affidavit of Kristy Alicie, ¶¶ 6-7.) In March and April 2004, Rocky participated in a class at LFMS called Career Education taught by Jason Humbert. (Affidavit of Charles W. Rose, ¶¶ 4-7; Affidavit of Jason Humbert, ¶¶ 4-9.) The purpose of the class was to review students' goals for high school, and Mr. Humbert invited all parents "to participate in this process." Mr. and Ms. Hill did not contact Mr. Humbert. (Id.)
Rocky began clinical sessions with Trevor Milliron, Ph.D. ("Dr. Milliron") on April 5, 2004, by which time Dr. Causo had also prescribed Lexapro. (Deposition of Trevor Milliron, Ph.D., 11:22-24; Affidavit of Greg Kyser, M.D., Exhibit A, p. 12.) By May 11, 2004, Dr. Causo had diagnosed Rocky with schizophrenia and prescribed Abilify, an anti-psychotic medicine. (Id.)
At the end of the 2003-2004 school year, LFMS officials promoted Rocky to ninth grade for non-academic reasons. When deciding to advance a student for non-academic reasons, Principal Stevenson considers the ages of the student and his peers since discrepancies between the two often lead to even less desirable results. (Affidavit of Ritchie Stevenson, ¶7). At this time, Ms. Hill asked for a special education referral when she met with the LFMS Principal, Ritchie Stevenson (hereinafter "Mr. Stevenson"), to discuss Rocky's transition to high school. (Affidavit of Ritchie Stevenson, ¶¶ 8-9; Deposition of Kathy Hill, 31:2-33:8.) Mr. Stevenson told Ms. Hill that there was not enough time left in the 2003-2004 school year (school ended May 21, 2004) to obtain relevant data and schedule or conduct a pre-referral meeting and told her to call BCHS before school started in August to get the ball rolling. (Id.) Dr. Milliron encountered the same response when he called and talked to Joy Yates at the BCBE Central Office on Tuesday, May 18, 2004, which was three days before the last day of school. (Deposition of Trevor Milliron, Ph.D., 18:23-19:18.) Ms. Yates told Dr. Milliron that just because Rocky had schizophrenia did not automatically mean he would receive special services -- Rocky must be evaluated first. Dr. Milliron responded that he understood that but the evaluation process needed to be started because it was "important for Rocky to start school with a plan in place." Ms. Yates responded it would be difficult to do so but recommended Dr. Milliron call the BCHS counselor, Dinah Bivens. (Deposition of Trevor Milliron, Ph.D., 19). When asked in his deposition if he had thought the promotion to ninth grade was inappropriate, Dr. Milliron responded, "No, I didn't necessarily think it was inappropriate, but I was concerned because of difficulties that could happen with the transition." (Deposition of Trevor Milliron, Ph.D., 19).
In Summer 2004, Rocky continued seeing Dr. Causo, who discontinued Zyprexa and increased his Abilify. (Deposition of Trevor Milliron, Ph.D., 33:14-21.) Rocky also continued seeing Dr. Milliron, who explained that Rocky was teased outside of school, was improving based in part on his medication, and might have problems with the transition to high school. (Id. at 21:16-39:6.) In July 2004, Dr. Milliron contacted a BCHS Guidance Counselor, Dinah Bivens (hereinafter "Ms. Bivens"), to advise school authorities of Rocky's recent psychiatric diagnoses and possible transition issues, but not any transportation-related needs or concerns. (Affidavit of Dinah Bivens, ¶ 7.)
On Friday, July 30, 2004, Ms. Hill and Rocky met with Ms. Bivens to introduce Rocky to the school, register him for classes for the 2004-2005 school year, and discuss Ms. Hill's concerns about Rocky's transition. (Id. at ¶ 9; Deposition of Kathy Hill, 34:4-37:17.) They discussed Rocky's peer relationships generally; neither Ms. Hill nor Rocky described severe or pervasive harassment; they discussed (outside of Rocky's presence) Rocky's diagnoses and Ms. Hill's concerns about Rocky's transition; nobody communicated to Ms. Bivens a request for special transportation services or accommodations. (Id.; Affidavit of Dinah Bivens, ¶ 7.) Ms. Hill gave Ms. Bivens a prescription pad note from Dr. Causo stating Rocky suffered from ADHD, bipolar disorder, anxiety, and depression. They also discussed sleepiness as a side effect of Rocky's medication. Ms. Hill completed the standard Student Data Form provided to all incoming BCHS students, and Ms. Hill completed two Medical Report for Health/Physical Impairments forms. (Id.; Deposition of Kathy Hill, 210:12-211:4.) In response to this conversation, Ms. Bivens assigned Rocky to classes she thought were best suited to him, physically showed him around the school, encouraged him to stop by, and prepared to pay special attention to him. (Affidavit of Dinah Bivens, ¶ 10; Deposition ...