Michael E. Lyons, Denita L. Lyons, as Co-Personal Representatives of the Estate of Megan Renee Lyons v. Richmond Community School Corp. d/b/a Richmond High School Joe Spicer

May 08 2013, 8:10 am

FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES
RICHMOND COMMUNITY SCHOOL
GARY P. PRICE CORPORATION ET AL.:
Indianapolis, Indiana RICK D. MEILS
JOHN W. MERVILDE
Meils Thompson Dietz & Berish
Indianapolis, Indiana

ATTORNEY FOR APPELLEE
INDIANA INSURANCE COMPANY:

JAMES S. STEPHENSON
Stephenson Morow & Semler
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

MICHAEL E. LYONS, Individually; )
DENITA L. LYONS, Individually; )
MICHAEL E. LYONS and DENITA L. )
LYONS, as Co-personal Representatives )
of the Estate of Megan Renee Lyons, Deceased, )
)
Appellants/Plaintiffs, )
)
vs. ) No. 89A04-1204-PL-159
)
RICHMOND COMMUNITY SCHOOL )
CORPORATION d/b/a RICHMOND )
HIGH SCHOOL; JOE SPICER; )
JEFFREY THORNE; and MAGGIE LaRUE, )
in their individual and official capacities, )
)
Appellees/Defendants, )
 )
INDIANA INSURANCE COMPANY, )
)
Appellee/Non-Party-Respondent. )

APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Peter D. Haviza, Special Judge
Cause No. 89D01-1006-PL-11

May 8, 2013

OPINION - FOR PUBLICATION

BRADFORD, Judge

Appellees/Plaintiffs Michael and Denita Lyons appeal the trial court’s grant of

summary judgment in favor of Appellees/Defendants Richmond Community School

Corporation and certain school administrators (“RCSC”). The Lyonses’ daughter, Megan,

was a Richmond High School student with Down syndrome, a medical condition that

rendered her “Severely Mentally Disabled.” Tragically, Megan choked on a sandwich in the

school cafeteria, was deprived of oxygen for fifteen to twenty minutes, and ultimately died at

a hospital two days later. The Lyonses sued RCSC under the Indiana Tort Claims Act

(“ITCA”) and 42 U.S.C. § 1983, alleging RCSC’s acts or omissions caused Megan’s death.

The trial court granted RCSC summary judgment on the issues of compliance with the

ITCA’s notice provision and contributory negligence as well as on the Lyonses’ § 1983

claims.

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 We conclude that summary judgment was inappropriate on the Lyonses’ ITCA claims

by virtue of the discovery rule: when the Lyonses’ cause of action accrued remains a

question of fact for the jury to decide. The issue of contributory negligence also should not

have been judged as a matter of law. We agree with the trial court, however, that there

remains no genuine issue of material fact as to the Lyonses’ claims of fraudulent

concealment and substantial compliance with the ITCA’s notice provision; summary

judgment would have been proper on these grounds. We further conclude that summary

judgment was appropriate on the Lyonses’ § 1983 claims: RCSC did not owe Megan a duty

of protection under the special relationship or state-created danger doctrine, and it did not

deprive the Lyonses of their due process right of judicial access.

The trial court also granted a motion to quash the Lyonses’ third-party discovery

requests against Appellee/Non-Party-Respondent Indiana Insurance, RCSC’s insurer, and

subsequently denied the Lyonses’ motion for leave to add Indiana Insurance as a defendant.

We conclude that the Lyonses cannot assert a third-party spoliation claim against Indiana

Insurance, and therefore, that the trial court did not abuse its discretion in denying the

Lyonses’ motions. The judgment of the trial court is affirmed in part and reversed in part.

FACTS AND PROCEDURAL HISTORY

Megan was a seventeen-year-old Richmond High School (“RHS”) student with Down

syndrome. This medical condition rendered Megan “Severely Mentally Disabled,” and as a

consequence, she would swallow food without chewing sufficiently and sometimes take

successive bites before swallowing. The record reveals numerous factual inconsistencies

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concerning Megan’s supervision and dining needs and RCSC’s plan for meeting those needs;

however, the evidence most favorable to the Lyonses indicates that RCSC was aware of

Megan’s eating difficulties and had implemented a plan to accommodate them. This

included a policy of cutting Megan’s food into pieces and the assignment of a one-on-one

paraprofessional to supervise and assist Megan at all times. Tragically, on January 7, 2009,

Megan choked on a sandwich in the RHS cafeteria and died from the resulting oxygen

deprivation two days later.

The details of Megan’s choking incident are also highly contested. But when viewed

in favor of the Lyonses, the evidence shows that RHS had three paraprofessionals in the

cafeteria on the day Megan choked: Vickie Lett, Cindy DeLucio, and Bill Ryan. Lett had

served as Megan’s one-on-one paraprofessional for at least two years prior to Megan’s death;

however, on that day, DeLucio was assigned to Megan during lunch. DeLucio had never

before accompanied Megan to lunch, was not aware of Megan’s special lunchtime needs, and

did not cut Megan’s sandwich into pieces as required by Megan’s dining plan.

RHS Assistant Principals Jeff Thorne, Joe Spicer, Rusty Hensley, and Rachel

Etherington were also on duty in or near the cafeteria on the day Megan choked. When

DeLucio realized that Megan was choking, she twice tried to get Assistant Principal Spicer’s

attention from the hallway outside the cafeteria. Having no success, DeLucio instead

summoned Lett from a table ten feet away. Lett proceeded to smack Megan on her back in

an attempt to dislodge the food in Megan’s throat, but Megan continued to choke. Lett told

DeLucio to get help, prompting DeLucio to retrieve Assistant Principal Thorne from nearby.

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Like Lett, Thorne proceeded to tap Megan on her back several times to no avail. DeLucio

next approached Assistant Principal Spicer and told him that he was needed in the cafeteria.

She did not tell Spicer that Megan was choking. Spicer went to Megan’s side and assisted

Thorne in attending to Megan.

Three or four minutes after Megan began choking, Assistant Principal Hensley entered

the cafeteria, saw that Megan was choking, and called for a school nurse. Nurse Sharon

Provance received the call but was informed only that “Mr. Hensley needs you.” Appellants’

App. p. 683. RHS has a policy of not relaying detailed emergency information over the

radio. As a result, Nurse Provance believed there had been a simple fight and did not rush to

the cafeteria. She instead packed up her first aid kit, prepared a bag of ice, and walked.

Nurse Provance arrived at the cafeteria ten minutes after she was called.

Upon arriving on the scene, Nurse Provance quickly assessed Megan’s condition and

instructed Assistant Principal Spicer to call 911. At this point, approximately thirteen

minutes had passed since Megan began choking. Nurse Provance performed back blows,

finger sweeps, and the Heimlich maneuver on Megan, efforts that produced a tennis ball-

sized clump of food from Megan’s mouth and esophagus. Megan’s airway, however,

remained blocked, and, by the time a second RHS nurse, Deborah Stracener, arrived on the

scene, Megan’s heart had stopped. Nurse Stracener joined Nurse Provance in performing

CPR on Megan. Three minutes after 911 was called, EMTs arrived and intubated Megan to

restore her airway. She was taken to Reid Hospital in Richmond and then transported to

Riley Children’s Hospital in Indianapolis, where she died on January 10, 2009.

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 Megan was without oxygen for approximately fifteen to twenty minutes. RHS did not

have a policy or procedure in place for responding to choking emergencies, and it did not

provide its paraprofessionals with training in basic first aid, CPR, or the Heimlich maneuver.

None of the individuals that first responded to Megan’s aid performed the Heimlich

maneuver or called 911.

RHS cafeteria worker Rhonda Swearingen witnessed Megan’s entire choking incident.

Food Service Coordinator Margaret LaRue, however, was off-campus at the time, returning

only in time to see the EMTs removing Megan from the cafeteria. LaRue has no personal

knowledge of what happened in the cafeteria that day, and Swearingen never told anyone

with RCSC what she had seen.

Soon after the incident, Principal Barbara Bergdoll and LaRue held a meeting with

Swearingen and the school’s three other cafeteria workers to discuss HIPAA privacy laws

and RCSC confidentiality policies. Twice that year, LaRue had conducted similar meetings

with her staff. LaRue told the workers they would be fired on the spot if they spoke about

Megan’s choking incident outside of RHS. LaRue pointed at Swearingen when she made

this statement.

Principal Bergdoll held a second meeting on the afternoon of Megan’s choking

incident, at which school administrators “did a recap of what happened in the cafeteria” that

day, Appellants’ App. p. 717, and “discussed what could have been done better” with regard

to communication. Appellants’ App. p 674. Assistant Principal Hensley was in attendance.

Also “brought up” at the meeting was the fact that RHS operated a video surveillance system

6
that covered the area in the cafeteria where Megan choked. The surveillance footage is

digitally preserved on a hard-drive for approximately ninety days.

Shortly after Megan choked, RCSC reported the incident to Indiana Insurance. On

February 25, 2010, Indiana Insurance conducted an investigation of the incident “oriented

toward the prospect of litigation.” Appellants’ App. p. 928. This included on-site interviews

with certain RHS personnel. The investigation did not reveal to Indiana Insurance the

existence of RHS’s video surveillance system or its temporarily preserved footage. The

video expired without ever having been seen by Indiana Insurance, RCSC, or the Lyonses.

A day or two after Megan’s choking incident, Principal Bergdoll and Assistant

Principal Hensley visited the Lyonses at Riley Chidren’s Hospital. During the visit, Mrs.

Lyons repeatedly asked Hensley how long Megan had been without oxygen. Hensely assured

the Lyonses that it had been a “very short period of time,” but “no one could ever tell [the

Lyonses] what that meant.” Appellants’ App. p. 19. Similarly, the only information

Principal Bergdoll relayed to the Lyonses during the visit was that Megan had choked.

Bergdoll later admitted, “[T]hat’s the best that we could come up with because I don’t think

anybody really knew, still don’t know to my knowledge.” Appellant’s App. p. 649.

“Two or three times” after Megan’s death, Mrs. Lyons requested to meet with

Assistant Principal Hensley to discuss Megan’s choking incident. Appellants’ App. p. 820.

Hensley’s response each time was, “We’ll get together.” Appellants’ App. p. 787. At least

one of these requests was made prior to RHS’s graduation ceremony on June 14, 2009. On

this occasion, Hensley asked that the Lyonses contact him after graduation. The Lyonses did

7
not follow-up with Hensley.

On October 1, 2009, Swearingen called Mr. Lyons and informed him generally that

“things were not done properly” with regard to RCSC’s response to Megan’s choking

incident. Appellants’ App. p. 788. Neither party to this five-minute conversation recalls

specifically what was said, only that “the general conversation [had] to do with a time and

response situation.” Appellants’ App. p. 315.

On January 11, 2010, the Lyonses filed a notice of tort claim with RCSC. The

Lyonses filed their complaint for damages on June 8, 2010, alleging negligence, wrongful

death, and civil rights violations. On May 6, 2011, the Lyonses sought third-party discovery

from Indiana Insurance. Indiana Insurance moved to quash the request on May 18, 2011. On

July 22, 2011, RCSC moved for summary judgment on all claims.

On September 20, 2012, the trial court granted Indiana Insurance’s motion to quash,

holding that Indiana Insurance owed no duty to the Lyonses to direct RCSC to preserve a

copy of the video surveillance. On October 6, 2011, the Lyonses cross-moved for summary

judgment on the issue of compliance with the ITCA’s notice provision. On October 25,

2011, the Lyonses moved for leave to amend their complaint to add Indiana Insurance as

defendant based on its failure to conduct a reasonable claims investigation.

On December 19, 2011, the trial court held a hearing on all pending motions. On

March 22, 2012, the trial court issued an order denying the Lyonses’ motion for summary

judgment and granting summary judgment in favor of RCSC. On the same day, the trial

court also denied the Lyonses’ motion for leave to add Indiana Insurance as a defendant.

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 DISCUSSION AND DECISION

“In reviewing a motion for summary judgment, this court applies the same standard as

the trial court.” Daugherty v. Dearborn Cnty., 827 N.E.2d 34, 35 (Ind. Ct. App. 2005). “We

must determine whether there is a genuine issue of material fact, and whether the law has

been correctly applied….” Id. “Neither the trial court, nor the reviewing court, may look

beyond the evidence specifically designated to the trial court.” Id. “A trial court’s grant of

summary judgment is clothed with the presumption of validity, and the appellant bears the

burden of demonstrating that the trial court erred.” Id.

I. Indiana Tort Claims Act

The Lyonses argue that the trial court erred in granting RCSC summary judgment on

the issue of compliance with the notice provision of the Indiana Tort Claims Act. The ITCA

bars a claim against a political subdivision unless notice of the claim is given to the

governing body within 180 days “after the loss occurs.” Ind. Code § 34-13-3-8(a). It is

undisputed that the Lyonses did not notify RCSC of its claims within 180 days of Megan’s

death. Rather, the Lyonses assert three alternative theories of compliance with the ITCA’s

notice provision: the discovery rule, fraudulent concealment, and substantial compliance.

A. Discovery Rule

The Lyonses claim that their notice-of-claim was not untimely by virtue of the

discovery rule. As stated above, the ITCA requires notice within 180 days “after the loss

occurs.” Ind. Code § 34-13-3-8(a). Under Indiana’s discovery rule, a loss is said to occur

“when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that

9
an injury had been sustained as a result of the tortious act of another.’” Reed v. City of

Evansville, 956 N.E.2d 684, 691 (Ind. Ct. App. 2011), trans. denied (quoting Wehling v.

Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992)).

The discovery rule “has both an injury and a causation prong.” Evenson v. Osmose

Wood Preserving Co. of Am., Inc., 899 F.2d 701, 703 (7th Cir. 1990) (applying Indiana law).

Here, it is not disputed that the Lyonses knew of Megan’s death well before the expiration of

the ITCA’s 180-day limitation period. We focus, therefore, on the causation prong of the

discovery rule. In that regard, the Indiana Supreme Court has clarified that

a claim subject to the discovery rule accrues when a plaintiff is informed of a
“reasonable possibility, if not a probability” that an injury was sustained as a
result of the tortious act of another, and that a person’s “mere suspicion or
speculation” as to causation of an injury is insufficient to trigger accrual.

Reed, 956 N.E.2d at 691 (quoting Degussa Corp. v. Mullens, 744 N.E.2d 407, 411 (Ind.

2001)). The question of when a plaintiff discovered facts which, in the exercise of ordinary

diligence, should lead to the discovery of a reasonable possibility of causation is often a

question of fact. Degussa, 744 N.E.2d at 410-11.

The Lyonses contend that they did not learn of a reasonable possibility that a causal

link existed between RCSC’s response to Megan’s choking incident and the oxygen

deprivation from which Megan ultimately died until October 1, 2009, when Swearingen

informed Mr. Lyons that “things were not done properly,” Appellants’ App. p. 788,

particularly with regard to RCSC’s “time and response.” Appellants’ App. p. 315. RCSC

counters that, through ordinary diligence, the Lyonses should have known of this possibility

on January 10, 2009, when they learned that Megan had died from oxygen deprivation as a

10
result of her choking while in the care of RHS.

“[T]he exercise of [ordinary] diligence means simply that an injured party must act

with some promptness where the acts and circumstances of an injury would put a person of

common knowledge and experience on notice that some right of his has been invaded or that

some claim against another party might exist.” Perryman v. Motorist Mut. Ins. Co., 846

N.E.2d 683, 689 (Ind. Ct. App. 2006) (emphasis added). The constructive knowledge that

RCSC seeks to impose on the Lyonses as of January 10, 2009, does not rise to this level.

Such a conclusion relies on “mere suspicion or speculation” that RCSC somehow caused or

exacerbated Megan’s oxygen deprivation. Degussa Corp., 744 N.E.2d at 411.

We conclude that the Lyonses must have possessed at least a basic knowledge of how

RCSC acted in response to Megan’s choking incident in order for there to be a reasonable

possibility of a causal link between that response and Megan’s death. As it favors the

Lyonses, the evidence shows that the extent of Megan’s oxygen deprivation is directly related

to RCSC’s response to it. But at the time of Megan’s death, the Lyonses did not know how

long Megan was without oxygen or any details of how RCSC responded to the emergency.

Moreover, when the Lyonses requested this information, Assistant Principal Hensley assured

them that Megan had been without oxygen for a “very short period of time” and put off

meeting with them to discuss Megan’s choking incident.

The proper question, therefore, is: in the exercise of ordinary diligence, could the

Lyonses have learned of RCSC’s alleged acts or omissions before July 15, 2009, which was

180 days before the Lyonses filed notice of their claims on January 11, 2010? This question

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is not resolved by the designated evidence, and therefore, it remains a genuine issue of

material fact for the jury’s determination. Summary judgment on the Lyonses’ ITCA claims

was inappropriate.

B. Fraudulent Concealment

The Lyonses claim that their notice-of-claim was not untimely because the ITCA’s

180-day period was tolled by virtue of RCSC’s fraudulent concealment. “Fraudulent

concealment is an equitable doctrine that operates to estop a defendant from asserting the

statute of limitations as a bar to a claim whenever the defendant, by his own actions, prevents

the plaintiff from obtaining the knowledge necessary to pursue a claim.” Johnson v. Hoosier

Enters. III, Inc., 815 N.E.2d 542, 549 (Ind. Ct. App. 2004) (quoting Doe v. Shults–Lewis

Child & Family Servs., 718 N.E.2d 738, 744 (Ind. 1999)). The doctrine tolls the statute of

limitations when the defendant “has either by deception or by a violation of duty, concealed

from the plaintiff material facts thereby preventing the plaintiff from discovering a potential

cause of action.” Doe, 718 N.E.2d at 744-45 (quoting Fager v. Hundt, 610 N.E.2d 246, 251

(Ind. 1993)). “While the fraudulent concealment exception is an equitable doctrine, the

relevant facts may be determined by a jury in the event of trial.” Fager, 610 N.E.2d at 253.

1. Active Concealment

The Lyonses claim that RCSC actively concealed its tortious conduct from the

Lyonses through the acts of LaRue and Assistant Principal Hensley. The Lyonses, however,

designate no evidence from which a finder of fact might reasonably infer that either of these

employees intended to conceal material facts from the Lyonses. “[A]ffirmative acts of

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concealment must be calculated to mislead and hinder a plaintiff from obtaining information

by the use of ordinary diligence, or to prevent inquiry or elude investigation.” Ludwig v.

Ford Motor Co., 510 N.E.2d 691, 697 (Ind. Ct. App. 1987). “There must be some trick or

contrivance intended by the defrauder to exclude suspicion and prevent inquiry.” Id.

The Lyonses contend that LaRue concealed material facts when, during a meeting

with the school’s cafeteria workers immediately after Megan’s choking incident, LaRue

threatened to fire the workers, including Swearingen, if they discussed the incident outside of

RHS. Allegedly, this threat prevented Swearingen from disclosing RCSC’s tortious conduct

until nearly one year later, when she contacted Mr. Lyons. The undisputed evidence,

however, shows that the purpose of LaRue’s meeting was to discuss HIPAA privacy laws

and RCSC confidentiality policies. Twice that school year, LaRue had conducted similar

meetings, and Swearingen admitted that LaRue had informed her of these policies before.

Further, the record reveals that LaRue had no personal knowledge of what happened in the

cafeteria that day and that she was unaware that Swearingen had witnessed the incident. In

fact, Swearingen testified that she never told anyone at RCSC what she had seen.

Moreover, the Lyonses make no showing that they relied on LaRue’s statements in

failing to discover a cause of action. Active fraudulent concealment requires a plaintiff to

have “reasonably relied” on the defendant’s deception in its hindrance of the plaintiff’s

discovery of a cause of action. Nelson v. Sandoz Pharm. Corp., 288 F.3d 954, 968 (7th Cir.

2002) (citing Doe v. United Methodist Church, 673 N.E.2d 839, 845 (Ind. Ct. App. 1996));

see Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005). And “[m]ere silence on

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the part of a defrauder will not constitute concealment absent a duty to speak.” Ludwig, 510

N.E.2d at 697. Here, there is no evidence that the Lyonses had knowledge of LaRue’s

meeting with the cafeteria workers or that she threatened to fire the workers if they spoke

about Megan’s choking incident outside of RHS. The Lyonses also never inquired to LaRue,

Swearingen, or any other cafeteria worker for details about Megan’s death. Active

fraudulent concealment, therefore, cannot be found.

The Lyonses contend that Assistant Principal Hensley concealed material facts when,

at the hospital following Megan’s choking incident, he assured the Lyonses that Megan had

been without oxygen for only “a short period of time.” Appellants’ App. p. 817. The

Lyonses allege that Hensley knew this not to be true because he had attended a meeting on

the afternoon of Megan’s choking incident, at which school administrators “did a recap of

what happened in the cafeteria” that day, Appellants’ App. p. 717, and “discussed what could

have been done better.” Appellants’ App. p. 674. From this, the Lyonses infer that Hensley

knew Megan had been without oxygen for more than a “short period,” yet made this

statement to the Lyonses to deliberately mislead them into believing she had not. We

conclude that a jury could not reasonably make this inferential leap.

The subjectivity in and vagueness of Hensley’s “very short period of time” statement

make it nearly impossible to find fraudulent intent. Short of an admission by Hensley that he

actually considered Megan to have been without oxygen for “a long period of time,” a jury

could only infer that Hensley should have known that his statement was misleading. Such a

finding might support negligence, but it would not establish the intentional misconduct

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required by active fraudulent concealment. See Hughes v. Glaese, 659 N.E.2d 516, 521-22

(Ind. 1995) (finding doctor’s affirmation to patient that chest X-rays showed everything to be

“okay” insufficient to support active fraudulent concealment without a showing that doctor

had actual knowledge that X-ray findings showed signs of disease).

2. Passive Concealment

The Lyonses also assert claims that RCSC passively concealed key facts by failing to

affirmatively disclose details of Megan’s choking incident to the Lyonses. “[W]here a

fiduciary or confidential relationship exists … there exists a duty to disclose material

information between the parties and a failure to do so results in concealment.” Id. at 520.

The Lyonses’ claims are creatively based on the special school-parent relationships created

by the in loco parentis doctrine, the Federal Education & Privacy Rights Act, and public

policy. None of these theories, however, has been held to establish a school’s obligation to

affirmatively disclose student information to parents. Finding that the Lyonses’ assertion

requires a substantial expansion of the law, we decline to recognize such a duty at this time.1

C. Substantial Compliance

Assuming the Lyonses’ cause of action accrued on the day Megan died, the Lyonses

claim that substantial compliance excuses their untimely notice-of-claim. It is well settled

that notice is sufficient if it substantially complies with the content requirements of the ITCA.

Boushehry v. City of Indpls., 931 N.E.2d 892, 895 (Ind. Ct. App. 2010) (citing Collier v.

Prater, 544 N.E.2d 497, 499 (Ind. 1989)). The ITCA requires that notice “describe in a short

1
While we find active and passive concealment cannot exist under these facts, the actions or inactions

15
and plain statement the facts on which the claim is based” and “include the circumstances

which brought about the loss, the extent of the loss, the time and place the loss occurred, the

names of all persons involved if known, the amount of the damages sought, and the residence

of the person making the claim….” Ind. Code § 34-13-3-10. The purpose of these

requirements is “to inform a political subdivision with reasonable certainty of the accident

and surrounding circumstances so that the political subdivision may investigate, determine

liability and prepare a defense to the claim.” Daugherty, 827 N.E.2d at 36. Substantial

compliance with the notice requirements of the ITCA is a question of law. Rudnick v. N. Ind.

Commuter Transp. Dist., 892 N.E.2d 204, 207 (Ind. Ct. App. 2008).

The Lyonses contend they substantially complied with the ITCA notice provision

because RCSC had full knowledge of the facts and circumstances surrounding Megan’s death

and promptly reported the incident to its insurer, who conducted an investigation of the

incident “oriented toward the prospect of litigation.” Appellants’ App. p. 928. Our courts,

however, have consistently held that actual knowledge of a claimant’s injury, even when

coupled with an investigation of the incident, “will not suffice to prove substantial

compliance.” Collier, 544 N.E.2d at 499 (citing Geyer v. Logansport, 370 N.E.2 333, 336

(Ind. 1977)); accord Brown v. Alexander, 876 N.E.2d 376, 383 (Ind. Ct. App. 2007); Fowler

v. Brewer, 773 N.E.2d 858, 865 (Ind. Ct. App. 2002). The municipality must be “advise[d]

of the injured party’s intent to assert a tort claim.” Bienz v. Bloom, 674 N.E.2d 998, 1005

(Ind. Ct. App. 1996) (citing Collier, 544 N.E.2d at 499); accord McConnell v. Porter

of RCSC, as argued by the Lyonses, remain relevant for a factfinder’s determination of the discovery rule.

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Memorial Hosp. 698 N.E.2d 865, 868 (Ind. Ct. App. 1998). “[T]he statutory purpose of

providing opportunity to investigate is not fully realized except when notice is had in the

context that one is claiming municipal liability for injury.” Batchelder v. Haxby, 337 N.E.2d

887, 890 (Ind. Ct. App. 1975); accord Collier, 544 N.E.2d at 499 (“Because the city was not

apprised of the claimant’s intention to bring suit, any investigation it conducted was

inadequate since it was undertaken without an eye firmly cast toward potential liability and

litigation.”). As such, substantial compliance cannot exist “when the claimant took no steps

whatsoever to comply with the notice statute.” Brown, 876 N.E.2d at 383. Because the

Lyonses filed no notice-of-claim—defective or otherwise—within 180 days of Megan’s

death, their reliance on substantial compliance is without merit.2

II. Contributory Negligence

The Lyonses argue that the trial court erred in granting RCSC summary judgment on

the issue of contributory negligence. “As a defense to a negligence claim, contributory

negligence is generally a question of fact. It can be a question of law if the court can say that

no reasonable person would have acted as the plaintiff did under the circumstances.” N. Ind.

Pub. Serv. Co. v. E. Chicago Sanitary Dist., 590 N.E.2d 1067, 1075 (Ind. Ct. App. 1992).

Below RCSC asserted that, if it were liable for failing to cut Megan’s sandwich into pieces

on the day that Megan choked, the Lyonses were contributorily at fault for not informing

RHS or its paraprofessionals that Megan’s sandwich needed to be cut. (Appellee’s Br. 43).

2
We note, without speculating on the reason or the outcome, that our supreme court has recently
granted transfer in the case of Schoettmer v. Wright, 971 N.E.2d 118 (Ind. Ct. App. 2012), in which we held
that a plaintiff’s settlement discussions with a government entity’s insurer were not sufficient to constitute

17
Contributory negligence as a matter of law is only appropriate where the plaintiff’s

negligence is so “clear and palpable that no verdict could make it otherwise.” Id. (quoting

Meadowlark Farms v. Warken, 176 Ind. App. 437, 446, 376 N.E.2d 122, 131–32 (1978)).

Finding that this strict standard has not been met, we conclude that the trial court erred in

granting summary judgment on this issue.

III. Section 1983 Claims

The Lyonses argue that the trial court erred in granting RCSC summary judgment on

the issue of RCSC’s liability under 42 U.S.C. § 1983.3 This Code section establishes liability

against persons who, under color of state law, deprive others of their constitutional rights. 42

U.S.C. § 1983. In order to succeed on a § 1983 claim, the Lyonses must show that (1) RCSC

deprived Megan or the Lyonses of a right secured by the Constitution and laws of the United

States, and (2) that it acted under color of state law. Windle v. City of Marion, Ind., 321 F.3d

658, 661 (7th Cir. 2003). The latter requirement is not at issue in this case.

The Lyonses claim that RCSC owed Megan a constitutional duty of protection and

that certain school administrators deprived Megan of her Fourteenth Amendment right to life

by responding to Megan’s emergency with deliberate indifference. The Lyonses also argue

that RCSC is municipally liable because it maintained express and implied unconstitutional

policies that caused Megan’s death. In addition, the Lyonses argue that RCSC violated their

due process right of access to the courts by acting to cover up its tortious conduct.

substantial compliance with the ITCA when the plaintiff did not also communicate—in writing or otherwise—
his intended claim to the government entity.
3
Failure to comply with ITCA’s notice provision is not a bar to asserting claims under § 1983.

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 A. Failure to Protect

The Lyonses claim that RCSC owed Megan a constitutional duty of protection. Due

process “generally does not impose upon the state a duty to protect individuals from harm by

private actors.” King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817 (7th Cir.

2007) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96

(1989)). There are, however, two exceptions to this general rule. “[T]he Constitution

imposes a duty upon the state to protect individuals with whom it has a ‘special relationship’

by virtue of the state’s custody over the individual.” Id. (citing DeShaney, 489 U.S. at 199-

200). And “the substantive component of the Due Process Clause imposes upon the state a

duty to protect individuals against dangers the state itself creates….” Id. (citing Monfils v.

Taylor, 165 F.3d 511, 516 (7th Cir. 1998)).

1. Special Relationship

The Lyonses claim that Megan’s disabilities and RCSC’s implementation of a plan to

accommodate them created a special relationship between RCSC and Megan, giving rise to a

constitutional duty on the part of RCSC to protect Megan from the consequences of her

disabilities while at school. An affirmative duty to protect an individual arises “where the

state has exercised its power so as to render [that] individual unable to care for himself or

herself.” J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990) (citing

DeShaney, 489 U.S. at 200). “But beyond the case of incarcerated prisoners and

involuntarily committed mental patients, the Supreme Court has never recognized such a

Werblo v. Bd. of Trustees of Hamilton Heights Sch. Corp., 537 N.E.2d 499, 501-02 (Ind. 1989).

19
duty.”4 Id. Moreover, “[t]he affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament or from its expressions of intent to help him, but

from the limitation which it has imposed on his freedom to act on his own behalf.”

Deshaney, 489 U.S. at 200. “Inaction by the state in the face of a known danger is not

enough to trigger the obligation….” Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993)

(discussing Deshaney, 489 U.S. at 200). Megan’s disabilities were not imposed on her by

RCSC; therefore, no special relationship existed.

2. State-Created Danger

The Lyonses claim that RCSC had a constitutional duty to protect Megan because it

created the danger that caused her death. Specifically, the Lyonses contend that RCSC

endangered Megan by: (1) negligently hiring DeLucio; (2) failing to train its

paraprofessionals in the Heimlich maneuver, CPR, or basic first aid; (3) failing to adequately

supervise Megan while eating; (4) failing to adequately respond to Megan’s emergency; (5)

failing to provide nurses with critical information; and (6) failing to promptly call 911.

The state-created danger doctrine requires that danger result from some affirmative act

of the state that shocks the conscience. King ex rel. King, 496 F.3d at 817-18. By logical

definition, however, inaction is not an affirmative position. Windle, 321 F.3d at 662 n.2.

4
Although not argued by the Lyonses, school children have been commonly analogized to prisoners
and mental patients under the special relationship doctrine because school attendance is compulsory and
because, to some extent, school authorities act in loco parentis. But “[t]he circuits that have confronted this
issue have uniformly rejected this argument, holding that school children are not captives of the school
authorities and the basic responsibility for their care remains with their parents.” Hasenfus v. LaJeunesse, 175
F.3d 68, 71 (1st Cir. 1999) (citing J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272-73 (7th Cir. 1990)
(additional citations omitted)).

20
 The term “affirmative act” suggests a willful deviation from the status quo.
Thus an affirmative act will have as a counterpoint a non-affirmative position.
Typically, this involves inaction. Here Appellant posits a situation where not
acting was an affirmative act and therefore the [Appellee was] faced with the
choice between affirmatively choosing to do nothing and affirmatively doing
something. Under this scenario there is no non-affirmative position for the
Appellee to have taken. This is simply illogical.

Id. Therefore, the Lyonses’ asserted failure-based acts cannot constitute state-created

dangers. The Lyonses’ remaining allegation, negligent hiring, fails because it is not

conscience shocking. To shock the conscience, “conduct must be more culpable than mere

negligence, which is ‘categorically beneath the threshold of constitutional due process.’”

King ex rel. King, 496 F.3d at 818 (quoting Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).

B. Municipal Liability

The Lyonses claim municipal liability against RCSC by challenging the

constitutionality of both its express policy not to tell nurses detailed emergency information

over the radio and its customs of failing to train its paraprofessionals in the Heimlich

maneuver, CRP, and basic first aid, and of failing to implement a school choking policy. See

City of Canton, Ohio v. Harris, 489 U.S.378 (1989). But a plaintiff must prove that

individual state actors are liable on an underlying substantive claim in order to recover

damages from a municipality for its unconstitutional policies or customs. See City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986); see also Windle, 321 F.3d at 663. Since the

Lyonses failed to assert a viable claim against any RCSC administrator under the failure to

protect theories discussed above, their claims of municipal liability also must fail.

C. Judicial Access

21
 In addition to their claims on behalf of Megan, Mr. and Mrs. Lyons each assert their

own § 1983 claims, alleging that RCSC interfered with their due process right of access to

the courts. “The right of individuals to pursue legal redress for claims which have a

reasonable basis in law and fact is protected by the First and Fourteenth Amendments.” Love

v. Bolinger, 927 F. Supp. 1131, 1137 (S.D. Ind. 1996). “A corollary of this right is that

efforts by state actors to impede an individual’s access to courts ... may provide the basis for

a constitutional claim under 42 U.S.C. § 1983.” Id. An accidental, inadvertent, or otherwise

unintentional deprivation of access does not rise to the level of a due process violation under

§ 1983. Guffey v. Trago, 572 F. Supp. 782, 786 (N.D. Ind. 1983); see Marsh v. Kirschner, 31

F. Supp. 2d 79, 81 (D. Conn. 1998) (dismissing plaintiff’s § 1983 claim for failure to allege

that defendant intentionally interfered with plaintiff’s right of access) (citing Barrett v. U.S.,

689 F.2d 324, 331-32 (2d Cir.1982)).

The Lyonses contend RCSC interfered with their right to judicial access by: (1)

LaRue threatening to fire Swearingen; (2) Hensley assuring the Lyonses that Megan had been

without oxygen for only “a very short period of time”; (3) Hensley failing to meet with the

Lyonses; (4) RCSC failing to preserve RHS’s video surveillance footage; (5) RCSC failing to

conduct a formal investigation as required by RHS’s Emergency Preparedness Plan; and (6)

RCSC failing to report DeLucio’s neglect of Megan as required by Indiana law. The

Lyonses, however, have failed to designate evidence from which a finder of fact might

reasonably infer that any of these acts were intended by RCSC to cover up its alleged tortious

conduct.

22
 IV. Indiana Insurance

The Lyonses argue that the trial court abused its discretion in granting Indiana

Insurance’s motion to quash the Lyonses’ third-party discovery requests and in denying the

Lyonses’ motion for leave to amend their complaint to add Indiana Insurance as a defendant.

“An abuse of discretion may occur if the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court or if the trial court has misinterpreted

the law.” In re Ind. Newspapers Inc., 963 N.E.2d 534, 543 (Ind. Ct. App. 2012).

The Lyonses requested that Indiana Insurance provide deposition and documents

concerning its claims investigation and evidence preservation policies, generally; and the

investigation of Megan’s death and the preservation (or lack thereof) of the video

surveillance, specifically. The asserted purpose of this discovery was to investigate and

develop a third-party spoliation claim against Indiana Insurance for its failure to preserve

RHS’s video surveillance footage. In addition to the privileged nature of many of the

requested documents, the trial court found that Indiana Insurance did not owe a duty to the

Lyonses to direct RCSC to preserve a copy of the video. Further, the trial court “[did] not

believe that the doors to the insurance company and its files should be opened under the

guise of conducting discovery for a possible third-party spoliation claim.” Appellants’ App.

p. 23. We agree.

The Lyonses claim that Indiana Insurance owed them a duty to direct RCSC to

preserve RHS’s video surveillance footage because litigation was foreseeable. In

determining whether an insurer owes a duty to a plaintiff to maintain evidence “we analyze

23
(1) the relationship between the parties, (2) the reasonable foreseeability of the type of harm

to the type of plaintiff at issue, and (3) the public policy promoted by recognizing an

enforceable duty.” Am. Nat. Prop. & Cas. Co. v. Wilmoth, 893 N.E.2d 1068, 1070-71 (Ind.

Ct. App. 2008). In Wilmoth, “we concluded that the third-party insurer had no duty to the

claimant to preserve evidence ‘when no lawsuit had been filed, when the relevance of the

evidence could not have been anticipated, and when [the insurer] never had possession of the

evidence.’” Kelley v. Patel, 953 N.E.2d 505, 510 (Ind. Ct. App. 2011) (quoting Wilmoth, 893

N.E.2d at 1074).

Here, although Indiana Insurance conducted an investigation into Megan’s choking

incident “oriented toward the prospect of litigation,” Appellants’ App. p. 928, it is undisputed

that Indiana Insurance did not take possession of RHS’s video surveillance footage. While

the lack of physical possession is not dispositive of the issue, Kelley, 953 N.E.2d at 510

(citing Wilmoth, 893 N.E.2d at 1072), “it lessens the relationship between the insurer and the

[third-party claimant]” and “counsels against” finding that Indiana Insurance owed a duty to

the Lyonses. Id. (citing Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134, 137 (Ind.

Ct. App. 1998)). Even more so, the record indicates that Indiana Insurance had no

knowledge that the surveillance system or the video footage existed until well after the

ninety-day storage period had expired. It is hard to imagine how an insurer could have owed

a third-party claimant a duty to preserve evidence when neither party was aware of the

evidence’s existence at the time of spoliation.

The Lyonses further contend that Indiana Insurance owed them a duty to reasonably

24
investigate Megan’s choking incident, by which it should have discovered the surveillance

system and video footage during its on-site investigation of RHS. The Lyonses, however,

rely on a misreading of the following passage from Thompson:

A liability carrier has a duty in the ordinary course of business to
investigate and evaluate claims made by its insureds. Burr v. United Farm
Bureau Mut. Ins. Co., 560 N.E.2d 1250, 1255 (Ind. Ct. App. 1990), trans.
denied. In carrying out this duty, carriers take possession of documents and
things that must be authenticated and tested to evaluate claims. These same
documents and things will be key items of evidence in the event that the claims
are denied and litigation ensues. This conduct by necessity gives rise to a
relationship with the third party claimant.

704 N.E.2d at 137.

Contrary to the Lyonses’ assertion, an insurer’s duty to investigate arises from its

contract with the insured, not any special relationship with a third-party claimant. See

Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 190 F.R.D. 532, 535 (S.D. Ind.

1999) (stating that an insurer’s duty to investigate is contractual). In Thompson, we

considered that, because a liability insurer owes its insured a duty to investigate, it should

foresee that certain evidence it encounters during its investigation of a claim will be relevant

in future litigation surrounding that claim. 704 N.E.2d at 137 (“Liability insurance carriers

are no strangers to litigation, and it strains credulity to posit … that a liability carrier could be

unaware of the potential importance of physical evidence.”). This foreseeability5 supports a

finding that the insurer stands in a special relationship with a third-party claimant that may

give rise to a duty to preserve that evidence. But, Indiana Insurance did not owe the Lyonses

5
We note that not all evidence is foreseeably relevant. See Am. Nat. Prop. & Cas. Co. v. Wilmoth,
893 N.E.2d 1068, 1072 (Ind. Ct. App. 2008) (distinguishing Thompson).

25
a duty to investigate.

The trial court did not abuse its discretion quashing the Lyonses third-party discovery

requests. And because we hold that the Lyonses cannot assert a valid spoliation claim against

Indiana Insurance, the trial court’s denial of the Lyonses’ motion for leave to amend the

complaint to add Indiana Insurance as a defendant also was not in error.

The judgment of the trial court is affirmed in part and reversed in part.

BAKER, J., concurs.

ROBB, C.J., concurs in part, concurs in result in part, and dissents with opinion.

26
 IN THE
COURT OF APPEALS OF INDIANA

MICHAEL E. LYONS, Individually; )
DENITA L. LYONS, Individually; )
MICHAEL E. LYONS and DENITA L. )
LYONS, as Co-personal Representatives )
of the Estate of Megan Renee Lyons, deceased, )
)
Appellants/Plaintiffs, )
)
vs. ) No. 89A04-1204-PL-159
)
RICHMOND COMMUNITY SCHOOL )
CORPORATION d/b/a RICHMOND HIGH )
SCHOOL; JOE SPICER; JEFFREY THORNE; )
and MAGGIE LaRUE, in their individual )
and official capacities, )
)
Appellees/Defendents. )

ROBB, Chief Judge, concurring in part, concurring in result in part and dissenting in part
with opinion.

I concur with the majority’s decision that the trial court improperly granted summary

judgment on the Lyonses’ ITCA claims because a genuine issue of material fact remains as to

when the Lyonses could have learned of RCSC’s alleged acts or omissions and whether that

was within 180 days of filing their notice of claim. I, however, would also hold that the

Lyonses have made a case for tolling the time period in which they could file their notice of

claim because of fraudulent concealment. I also respectfully dissent from the majority’s

27
decision that that trial court properly granted summary judgment to RCSC on the Lyonses’

Section 1983 claims. As to all other aspects of the majority opinion, I concur.

I believe many of the things that raise a question of fact as to when the Lyonses should

have discovered their cause of action also raise a question of fact as to whether RCSC was

fraudulently concealing material facts concerning the Lyonses’ cause of action. RCSC

Principal Bergdoll was present at two meetings on the day of the incident. In one meeting,

Bergdoll and LaRue met with cafeteria employees and told them not to discuss the incident

with anyone. Allegedly, this was a reminder about HIPAA regulations and RCSC

confidentiality policies. However, assuming RCSC was a covered entity required to comply

with the HIPAA Privacy Rule,6 HIPAA would not preclude any disclosures to Megan’s

parents about the incident. See 45 C.F.R. § 164.502(g) (concerning implementation of the

Rule with respect to unemancipated minors). There is no indication this distinction was

made clear to employees at the meeting. Moreover, a cafeteria worker’s eyewitness account

of the incident would not be protected health information subject to the Privacy Rule.

RCSC’s confidentiality policy is not part of the record, but I believe it is unlikely it would

preclude disclosures to parents in situations such as this. LaRue told the cafeteria employees

the sanction for speaking about the incident would be immediate termination of employment.

Neither Bergdoll nor LaRue asked the workers if they had seen anything. In the second,

Bergdoll held a meeting with school administrators, including vice principal Hensley, to

6
HIPAA applies to “covered entities,” defined as a health plan, a health care clearinghouse, or a
health care provider who transmits health information in electronic form in connection with covered
transactions. 45 C.F.R. § 160.103. Most schools, even those that may have health information, are not

28
recap what had happened and discuss what could have been done differently. The existence

of the cafeteria video surveillance tape was also discussed at that meeting. Despite the

acknowledgement of the video during this meeting, it was never viewed and it was not

preserved. Bergdoll stated during a deposition that she had not watched the video because

she saw no reason to.

While Megan was still in the hospital, Hensley told the Lyonses that she had been

without oxygen for a very short period of time. Although that phrase is susceptible to more

than one interpretation, “very short time” in this context would not likely be understood by

anyone to be as long as fifteen to twenty minutes, the time Megan was actually without

oxygen. Two or three times, the Lyonses asked to sit down with Hensley and go over what

had happened. The last time, prior to RCSC graduation ceremonies on June 14, 2009,

Hensley told them to contact him after graduation. One hundred and eighty days after

Megan’s choking incident was June 7, 2009.

There are two types of fraudulent concealment: active and passive. Garneau v. Bush,

838 N.E.2d 1134, 1142 (Ind. Ct. App. 2005), trans. denied. Active concealment occurs when

there is an intention to mislead, to hinder a plaintiff from obtaining information by the use of

ordinary diligence, or to prevent inquiry or elude investigation. Hopster v. Burgeson, 750

N.E.2d 841, 854 (Ind. Ct. App. 2001). Passive concealment can be merely negligent and

arises from failure to disclose material information when a special relationship exists

between the parties. Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995). Although

required to follow HIPAA because they do not engage in covered transactions.

29
fraudulent concealment is an equitable doctrine, where it is an issue subsidiary to the statute

of limitations defense which is in turn subsidiary to an action at law, factual questions

relevant to the statute of limitations are generally for a jury to determine. Fager v. Hundt,

610 N.E.2d 246, 253 n.5 (Ind. 1993).

In my opinion, the Lyonses have presented enough evidence to at least raise a question

of fact as to whether the doctrine of fraudulent concealment applies in this case, and, if so,

whether the concealment was active or passive, when the statute of limitations began to run,

and ultimately, whether they filed their notice within a reasonable time. The Lyonses

designated evidence that Hensley was less than forthright with them in answering their

question about how long Megan was without oxygen or agreeing to meet with them to

discuss the incident; that not only did the school not preserve a video that would have shown

the incident, but did not even bother to view it; and that employees who were in the vicinity

were threatened with termination if they discussed the incident. The Lyonses relied on

Hensley’s assertion that Megan had been without oxygen for a “very short period of time”

and believing there was no way to know exactly what happened in the cafeteria that day until

Swearingen contacted them, did not suspect anything more egregious than that their child,

who had known eating issues, had simply choked and died despite everyone doing everything

they could to save her. LaRue did not speak directly to the Lyonses, but in speaking to her

employees, including Swearingen, and possibly misrepresenting their obligations under the

law, she might have kept her employees from speaking to the Lyonses, further keeping them

unaware of the actual course of events. Mrs. Lyons testified during her deposition that she

30
and her husband “always said we had to believe, we had to believe that everything was done

and should have been done, until we found out differently. And we had told ourselves if

anything went wrong that day and things didn’t happen the way we were told or the way

things should have happened, it would come out.” Appellants’ App. at 300-01. Whether or

not RCSC’s actions and inactions, through its employees, constituted fraudulent

concealment, is not an issue I believe the trial court should decide on summary judgment

because it requires weighing the evidence to determine whether there was intent and

reasonable reliance. Therefore, I would also reverse the trial court’s grant of summary

judgment on this ground.

I also respectfully dissent from the majority’s decision affirming the trial court’s grant

of summary judgment on the Lyonses’ Section 1983 claims. I believe there is at least a

question of fact as to whether there was a special relationship between RCSC and Megan.

Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999), cited by the majority, see slip op. at 20

n.4, does note that circuits that have considered whether a student is similar to a prisoner or a

patient with respect to whom a special duty of care exists have “uniformly rejected” the

argument. Id. at 71. However, Hasenfus also quotes Vernonia Sch. Dist. v. Acton, 515 U.S.

646, 655 (1995), in which the Supreme Court stated, “[W]e do not, of course, suggest that

public schools as a general matter have such a degree of control over children as to give rise

to a constitutional ‘duty to protect.’” (Emphasis added.) Hasenfus posits the Supreme

Court’s language does not foreclose “now and forever” liability for a due process violation

for inaction by a school toward a pupil, but leaves open the possibility that “in narrow

31
circumstances there might be a ‘specific’ duty.” 175 F.3d at 71-72. Those narrow

circumstances are limited to “behavior so extreme as to ‘shock the conscience’ . . . [or]

conduct that is truly outrageous, uncivilized, and intolerable.” Id. at 72.

“In the context of educating children, the in loco parentis doctrine is particularly

important based on Indiana’s compulsory education laws mandating the availability of public

education for its citizens and the ensuing recognition that schools need to stand in the

position of parents and guardians to the students . . . .” Griffin v. Simpson, 948 N.E.2d 354,

358 (Ind. Ct. App. 2011); see also Vernonia Sch. Dist., 515 U.S. at 655 (“[W]e have

acknowledged that for many purposes ‘school authorities ac[t] in loco parentis[.]’”). Even

more than with a typical high school student, RCSC was acting in loco parentis with respect

to Megan, who, because of her disabilities, was labeled “severely and profoundly

handicapped.” Appellant’s App. at 325. Although Megan was seventeen years old, she was

non-verbal and functioned at the level of a two- or three-year old child. Megan was

incapable of caring for herself and required supervision at all times. RCSC was not so much

providing educational resources to Megan as assisting her with developmental goals. It was

not just her guardian during the school day, but also her caretaker. The State of Indiana

implemented Individual Education Programs for Megan that recognized her special needs,

including in the area of food consumption, and RCSC assigned a one-on-one

paraprofessional to Megan to attend to her needs. Mrs. Lyons testified that “[w]e knew she a

had [sic] one-on-one para who was there and could have and should have responded to any

immediate need. I always thought that was Ms. Vicki, and I had the comfort that it was Ms.

32
Vicki because of the relationship she had with Megan.” Appellants’ App. at 300. Lett had

been Megan’s paraprofessional for at least two years prior to this incident, but on the day

Megan choked, a different paraprofessional was assisting her at lunch unbeknownst to her

parents. Despite knowing that choking was a known danger of Megan’s condition, the

school had no apparent protocol in place for handling a situation such as this, either for

Megan or any other student, and when Nurse Provance was called to the cafeteria, she was

not alerted to the emergency nature of the call. Whether, under these circumstances, RCSC

failed to protect Megan from a danger it created (by giving her a different paraprofessional

on this day) or made worse (in its response to the emergency), and whether its conduct

“shocks the conscience” is a fact issue I believe inappropriate for summary judgment. See

King ex rel. King v. East St. Louis Sch. Dist. 189, 496 F.3d 812, 818 (7th Cir. 2007) (“The

inquiry into whether official conduct shocks the conscience in a given case is a necessarily

fact-bound inquiry.”). I would therefore reverse the entry of summary judgment on the

Lyonses’ Section 1983 claim.

33