August 2023:
The MLO Minute: “PART ONE: Injuries To Persons with Disabilities in Care Facilities And Schools – Overcoming The Obstacles” —
A Three-Part Series By Dennis McAndrews, Esq., Lesley Mehalick, J.D., LL.M., and Daniel Woody, Esq. —
It is perhaps a great but unfortunate irony that some of the most significant injuries which persons with disabilities suffer are in schools, adult care facilities, or other programs specifically designed to address their disabilities. Yet Pennsylvania and other states’ laws often create legal barriers to recovery for these injuries despite the negligence or lack of due care by the very programs we entrust to assist our most vulnerable population. For example, Pennsylvania’s sovereign immunity statutes protect both local and state agencies, like school districts, from liability for most types of injuries suffered in care facilities, with only a few exceptions, mostly relating to transportation or defects in the property where the injury occurred. Recently, the General Assembly added a limited exception for an agency’s negligent response to sexual assaults.
In this three-part series of articles, we will provide a brief overview of the methods our firm uses to overcome these legal barriers and secure significant monetary recovery on behalf of persons with disabilities in schools, mental health facilities, and programs for the intellectually disabled.
In this article, we highlight our use of several federal laws to overcome state immunity in programs run by government agencies, including school districts, mental health/intellectual disability programs, and nursing facilities.
Of course, most public schools (and public charter schools) are either publicly run programs or enjoy the same immunity as publicly run programs (non-public schools are typically controlled by the traditional tort law of negligence). In our representation of individuals with disabilities, we have overcome Pennsylvania sovereign immunity by using three distinct federal statutes which apply without regard to state immunity principles.
For example, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (“ADA”) each protect individuals with disabilities from discrimination or a denial of benefits in federally funded programs or public accommodations, respectively. People with disabilities are also protected by 42 U.S.C. § 1983 (“Section 1983”), which is a seminal civil rights law that was passed shortly following the Civil War. Section 1983 allows individuals, including persons with disabilities, to enforce their constitutional and federal statutory rights against state actors, agencies, and departments, including public school districts, charter schools, and state-administered care facilities for people with disabilities or for the elderly. Section 1983 claims include, but certainly not limited to: protection from specific serious dangers created by public officials (often referred to as “state-created danger” cases); violations of the Fourth Amendment (where a child is unlawfully searched or seized by a school district or state actor); and enforcement actions to enforce the ADA (in the case of disability discrimination) or Title IX of the Education Amendments of 1972 (in the case of sex or gender-based discrimination).
While the threshold for liability under these statutes is higher than under state negligence law by requiring “deliberate indifference” by the public employees/officials involved with the circumstances resulting in injuries, we are adept at identifying specific actions and inactions by responsible public officials and employees which can establish deliberate indifference.
If a child or loved one is injured in a school, care facility, or nursing facility operated by a public or private agency, we provide free consultations and handle these matters on a contingency basis without payment of hourly fees by clients. Please don’t hesitate to reach out to us for a consultation in such a situation by CLICKING HERE or by calling any of our phone numbers on our website.
