My Child is Being Bullied at School – Can I Sue?

by | Jul 26, 2018 | Personal Injury |

The parents of a St. James Middle School student did.

The lawsuit alleges that their child was repeatedly assaulted at school, the child told his teachers, but the school did nothing to protect him from future assaults.

The parents allege that their child was stabbed by another student, kicked hard enough that his knee was dislocated, and punched in the face. He is now being homeschooled.

What does a parent do when their child is being bullied? Can you file a lawsuit against your child’s school? How do you sue a government entity in SC?

Can You Sue a School District?

If school officials are negligent, grossly negligent, or commit intentional acts that hurt your child, you may be able to file suit and ask the court for compensation.

You must show that the school officials owed a duty of care to your child (to keep them safe while they on the school’s property), that they breached that duty of care (by ignoring the child’s pleas for help as they are repeatedly assaulted by a bully or bullies), and that there are damages (physical injuries, psychological injuries, and expenses that were caused by the school’s negligence).

But, it’s not a “normal” lawsuit – there are only two ways that you can file suit against a school or any governmental entity – you can file suit under the SC state tort claims act, or you can file a civil rights action in federal court under 42 U.S.C. § 1983 – each has it’s drawbacks and benefits, and you can include both in your lawsuit when appropriate.

SC’s State Tort Claims Act

SC authorizes lawsuits against the state, municipalities, or government agencies under the SC State Tort Claims Act (SCSTCA), SC Code Section 15-78-10.

There are limitations on an SCSTCA lawsuit, including:

  • A two-year statute of limitations;
  • A cap on the total damages that can be recovered;
  • No punitive damages;
  • No pre-judgment interest;
  • Limitations on the causes of action that can be filed; and
  • The agency or municipality must be the named defendant and not the “bad actor.”

Federal 42 U.S.C. § 1983 Actions

A “1983 action” must be filed in federal court unless there are accompanying state-law causes of action. Even then, the defendant has the right to remove the case to federal court.

1983 actions do not cap damages, they allow for punitive damages when the evidence supports it, there is a three-year statute of limitations, and the individual “bad actor” must be named as the defendant instead of the municipality or agency where they work.

A 1983 action is based on a violation of a person’s civil rights – constitutional rights or rights granted by statute – “under color of state law.” In the lawsuit, you must allege the right that was violated by naming the constitutional right (First Amendment, Fourth Amendment, etc.) and how it was violated.

In many cases, a lawsuit can be filed either way – or it may include both causes of action. There are several factors that go into this decision, including:

  • Some cases are more difficult to win in federal court because of rules like “qualified immunity;”
  • State court or federal court may be a more “friendly” venue, depending on the area that jurors are pulled from and the local judges; and
  • In some cases, it might make a difference to jurors if you are suing an agency as opposed to an individual with a friendly face…

What Can I Do if My Child Is Being Bullied at School?

Bullying in schools is a complex problem that requires positive, consistent responses from teachers, school administrators, parents, and other adults in the community.

The first step, if you believe that your child is being bullied at school, should be to learn about the issue and then seek help. A lawsuit may compensate you or your child for the harm that they have suffered, but there is much more that can be done to recognize and stop bullying before it escalates…

What are the Warning Signs of Bullying at School?

Although many children will just tell you, some won’t for different reasons – they don’t want to look weak, they are afraid you will be angry, or they are afraid of retaliation if you go to the school and complain.

The website stopbullying.gov is a good resource and starting point to learn about bullying, including how to recognize the warning signs:

  • Injuries that your child doesn’t have an explanation for;
  • Lost or destroyed personal items;
  • Faking sickness to get out of school;
  • Changes in eating habits;
  • Nightmares or trouble sleeping;
  • Trouble with grades;
  • Changes in their friends or social patterns;
  • Low self-esteem; or
  • Self-destructive behavior.

If your child is showing one or more of these symptoms, maybe they are experiencing bullying, or there may be other causes – the important thing here is that you talk to your child about the problems they are having so you can learn how to help them…

Who is at Greater Risk for Bullying?

Although any child in any location may be subjected to bullying, there are risk factors that make it more likely to happen to your child. These include:

  • Anything that makes your child “different” from other children – overweight, underweight, the new kid at school, a different hairstyle or clothing style, for example;
  • Children who are seen as being weak and unable to defend themselves;
  • Children who are not “popular” and do not have many friends;
  • Children with disabilities; and
  • Children who identify as gay, lesbian, bisexual, or transgender.

Obviously, not every child who has these risk factors is going to be bullied – it is important for every parent to understand the risk factors and the warning signs of bullying at school.

So, What Can I Do?

Once you have recognized that your child is being bullied, you should act immediately to stop the bullying and prevent it from happening again.

For the parents above who filed suit, the first step they took was to notify the school. When that didn’t work, they withdrew their child from school and began homeschooling him. In most cases, homeschooling is not necessary, but – what you do depends on the situation.

Stopbulling.gov has some suggestions – depending on the circumstances, you may want to:

  • Call 911;
  • Contact a suicide prevention hotline;
  • Find a counselor or other mental health professional who can help;
  • Talk to your child’s teachers, school counselor, principal, or superintendent; or
  • Contact the Department of Education or Department of Justice.

SC Personal Injury Lawyers in Myrtle Beach, Conway, Charleston, and Columbia

If you have been hurt by the actions or inaction of school officials, you may have a lawsuit against the school district – when we meet with you and hear the facts of your case, we will give you our honest opinion as to whether your lawsuit is likely to be successful, and, if you have a case, we will fight to ensure that you or your child is fully compensated.

Call the SC personal injury attorneys at Coastal Law now at (843) 488-5000 or message us through our website to speak with a Myrtle Beach civil rights lawyer today.

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