NC family can’t sue school board after Orange County middle-schooler died, court rules
Fred Seymour collapsed on the field on the first day of practice for his Orange County middle school football team.
“He’s turning purple ... he can’t breathe at all,” a caller told a 911 operator about the Gravelly Hill Middle School student. “You’ve got to come.”
Fred, 13, was taken to the hospital, where he died three days later on Aug. 25, 2016.
In the summer of 2018, Fred’s estate which includes his mother Tonya Seymour, filed a wrongful death lawsuit against the Board of Education and three of the middle school football coaches, Eric Jeffries, Randy Jeffries and Wesley Holder. It contended they were negligent in their response to Fred’s breathing problems that turned into a severe asthma attack.
The lawsuit seeks compensation for Fred’s suffering, medical expenses, funeral expenses and other items, according to court documents. Attorneys for the family, the school board and the three coaches declined to comment on the case, which is ongoing.
Motion to dismiss
On Jan. 31, 2019, Superior Court Judge Carl Fox denied the school board’s motion to dismiss it from the lawsuit. The motion argued that the board had governmental immunity.
Governmental immunity protects local governments from lawsuits except in specific circumstances, including if a governing body waived immunity by purchasing liability insurance, a common practice.
The school board successfully appealed Fox’s decision in two Court of Appeals considerations.
The attorney for Fred’s estate argued that the school board waived governmental immunity for personal injury and wrongful death claims when it purchased and maintained liability insurance.
The N.C. Court of Appeals considered the case twice both times ruled in favor of the school board on March 3, 2020, and Feb. 2, 2021.
School boards waive immunity from negligence claims by purchasing liability insurance, but only to the extent the policy covers the board, the March decision stated. In this case, the school board’s insurance includes a clause that excludes claims involving athletic participants, the opinion said.
Family’s next steps
William Mills, attorney for the plaintiffs, said his client Tonya Seymour preferred he not speak with The News & Observer about her son’s death. Mills wrote in an email that they are contemplating next steps.
The estate could petition the N.C. Supreme Court to hear the case, but it’s more likely the case would return to Superior Court. There the estate could move forward against the three coaches or drop the lawsuit.
If the case moves forward, the Court of Appeals ruling could change how a jury looks at compensation in the case, experts said.
Some attorneys believe juries are less hesitant to issue large financial judgments against government defendants, such as a school board, compared to individuals, said Bob Hagemann, lawyer with Poyner Spruill and senior fellow at the UNC School of Government.
‘The bigger public policy issue’
What troubles Browne Lewis, dean of N.C. Central University’s law school, about this case is the power the situation gives insurance companies to determine when the school boards are and are not liable.
“The bigger public policy issue I have with that is that you are giving insurance companies incentives to put in more and more exclusions of policies,” Lewis said. “It’s not going to hurt the school board because the more they are not protected from, the more they are not liable for.”
If it was a slightly different situation and the student wasn’t participating in athletics, the immunity would be waived since it was outside of the athletic clause, Lewis said.
“The only person getting hurt from this are these athletes and these parents,” who are expecting their kids to be protected in these situations, she said.
Lewis thinks school boards buying insurance should be enough to waive their immunity, she said..
“If they negotiate a bad deal with their insurance company and don’t get protected by something, to me that is between them and the insurance company,” Lewis said.
This is a problem that isn’t going to be solved in the courts, Lewis said, but through public pressure and changes to state laws to better protect athletes.
During or before practice?
School officials knew Fred had asthma and an emergency action plan was established a year before. He was to use his inhaler and be removed from practice if he started coughing for prolonged periods, the lawsuits states.
But the defendants “failed to provide assistance to Fred” when that happened, it states.
Attorneys for the three teachers wrote in a response to the lawsuit that Fred didn’t have breathing problems until after football practice when two of the three named coaches weren’t present. At that time, officials implemented the emergency plan and called a nurse, who called 911, the response said.
This story was originally published February 15, 2021 at 5:45 AM.
