WILLIAMSPORT — The Mount Carmel Area School District has responded to an amended lawsuit filed by the parent of a high school student who was injured by flammable methanol in a chemistry experiment gone awry.
The district, through its attorney, Richard A. Polachek, of Polachek Law Firm, filed a 33-page brief Tuesday in support of a motion to dismiss the complaint filed by Karen Green, whose daughter suffered second-degree burns to her legs on Aug. 30.
Green, through her attorney, Bryan Ferris, of Swartz Culleton, on Nov. 16 sued Superintendent Bernie Stellar, high school Principal Lisa Varano, chemistry teacher Tammy Michaels and school nurse Leanne Ryan for alleged violations of substantive due process, Monell liability, state-created danger and negligence against all defendants, and supervisory liability against Stellar and Varano.
The amended complaint filed Jan. 9 added a sixth count, intentional infliction of emotional distress, against all defendants.
The brief in support of dismissing the amended complaint claims the count of intentional infliction of emotion dismiss should be tossed because the defendants are immune from the suit and the plaintiffs failed to establish sufficient “outrageous conduct” on the part of the defendants.
The defendants claim the district and its employees are immune from liability for claims of intentional infliction under the Political Subdivision Tort Claims Act (PSTCA), which provides a local agency and its employees with governmental immunity for tort actions.
An exception to the rule, the brief notes, is that employees are not immune from liability where their conduct amounts to “actual malice” or “willful misconduct.”
Citing Green’s suit, the brief says the “plaintiffs have failed to factually plausibly set forth that defendants acted with actual malice or with willful misconduct.”
It argues that in order to establish intentional infliction there must be extreme and outrageous conduct that is intentional or reckless, which causes emotional and severe distress.
“Plaintiffs have simply failed to establish any conduct on the part of the defendants that could be labeled extreme and outrageous, let alone intentional and reckless, (or) that the alleged intentional, reckless, outrageous and extreme conduct resulted in emotional distress that is severe,” the brief says.
The lawsuit alleges Michaels planned an experiment that involved lighting liquid methanol with the consent and acquiescence of Stellar, Varano and the district, which had an official policy or custom of permitting the “dangerous” experiment, and that Michaels had performed the experiment for the preceding 23 years and, since 2015, in violation of National Fire Protection Association (NFPA) standards.
The plaintiffs claim the experiment was conducted without appropriate safety measures, such as a safety hood or protective barrier, within “mere feet” of students who were not provided any personal protective equipment.
It says the district failed to heed the advice of the American Chemical Society (ACS) and National Science Teachers Association (NSTA) which, since 2014 and 2015, respectively, have urged against performing methanol-flame experiments on open laboratory desks in the classroom because they pose an “unnecessary and serious risk” of injury to students.
The defendants seek to have the entire lawsuit dismissed pursuant to Federal Rule of Civil Procedure for failure to state a claim upon which relief can be granted.
The motion to dismiss states that Stellar, Varano, Michaels and Ryan are entitled to the defense of qualified immunity and that the defendants are equally entitled to the immunity provisions as set forth in the PSTCA.
The motion also alleges that Stellar, as superintendent, is entitled to “high public official immunity,” therefore the count of state-created danger should be dismissed.
Green is seeking punitive and compensatory damages of $150,000 for each of the six counts.