By By Suzanne Monk / managing editor
May 11, 2003
Sometimes, the first battle in a lawsuit is fought during pre-trial hearings, well before a jury is chosen or a trial date set.
Pre-trial hearings are meetings between the judge and lawyers from both sides in a dispute. Their purpose is to establish ground rules for the trial. Decisions are made about what can and cannot be discussed in front of a jury and what evidence is admissible.
Sometimes, the challenge is even more basic.
If you are an attorney whose client is trying to sue an arm of the government, Job No. 1 is to keep the lawsuit from being dismissed outright.
Why? Because governmental bodies are generally immune from civil liability.
Unlike private citizens, governmental bodies and their employees cannot be sued for things they do in the performance of their jobs, even if they make bad judgment calls or abuse their discretion even if their actions cause harm.
City councils and boards of supervisors are cloaked by "discretionary immunity," for example, as are police departments, cops, school districts and teachers.
So, the deck was stacked against a Lauderdale County mother who decided to sue a couple of school districts. She chose Meridian attorney Bill Ready Jr. to represent her.
Basics of the case
Here's the sequence of events that led to the filing of a lawsuit. None of these facts are in dispute.
Band director Larry Wayne McKenzie was fired in June 1998 by the Newton City School District for sexual harassment of a minor female student.
McKenzie was subsequently hired in July 1998 by the Lauderdale County School District as band director for Northeast High School.
He was the only chaperone on an out-of-town band trip, during which he had sex with a 15-year-old student. During that trip, or at a later point on the Northeast campus, he impregnated her. The child of that union is about 5 years old.
McKenzie is serving a 15-year sentence for statutory rape.
The mother of the girl filed a related $11 million civil lawsuit in Lauderdale County Circuit Court, seeking compensatory and punitive damages against McKenzie, the Newton school district and the Lauderdale school district.
Both school districts asked Circuit Judge Robert Bailey to dismiss the complaints against them.
Judge's decision
In late April, Judge Bailey ruled that, by law, punitive damages cannot be sought against either school district.
He also said the Newton City School District cannot be held liable because they have no responsibility to Lauderdale students. They are dismissed from the lawsuit.
Ready had asserted that Lauderdale school officials contacted Newton school officials about McKenzie's references and received a less-than-complete reply.
He also argued that Newton had a duty to inform the district attorney that a crime had probably occurred on one of their campuses. If they had, Ready said, McKenzie might never have been hired in Lauderdale and his client's daughter would not have been harmed.
The judge disagreed.
No immunity
for Lauderdale
Finally, the judge said the Lauderdale County School District can be sued for compensatory damages.
Of the $11 million in damages sought, $3.5 million was identified as compensatory largely associated with raising the child.
Taking his cue from the Mississippi Supreme Court, Judge Bailey ruled that discretionary immunity is not absolute. It shields a governmental defendant only if "ordinary care" has been exercised to prevent harm.
The judge's ruling does not mean he thinks the Lauderdale County School District did not exercise ordinary care.
It means he thinks the question is debatable and should be decided at trial.
And, while most of the lawsuit was thrown out, Ready accomplished what he had to accomplish. He's still standing there with a client and one defendant with money who can be sued in part.
What's next?
Ready filed a motion late Friday afternoon citing reasons why he thinks the judge should reconsider dismissing the Newton school district from the lawsuit.
I would imagine that Lauderdale's attorney will file a motion asking the judge to reinstate his client's immunity.
The judge is unlikely to reverse himself on either decision.
So, the next step would seem to be a trial.
If you're Lauderdale's attorney, do you want to stand in an open courtroom and try to explain how sending a mixed group of teenagers on a three-day, two-night band trip with one male chaperone is an example of exercising "ordinary care"?
Do you want to explain how your client failed to pick up on the fact that McKenzie had been fired for inappropriate sexual behavior with students in a neighboring county?
Do you want to endure the publicity along the way?
I don't think so.
If I had to call it, I'd say Ready and his client win if it goes to trial. But, I'd put my money on an out-of-court settlement before that happens.