4/16/09
Three years after an Española Middle School student was assaulted and dragged into a bathroom during school hours, her parents are still trying to hold the Española School District and its former security contractor accountable.
“Schools have duties to provide safe learning environments to their students,” the family’s attorney D. Scott Riedel said. “And obviously linked to that is contractors, who are supposed to provide the security, also have a duty.”
In March 2006, the 15-year-old victim was confronted in a hallway between classes. Three male students — Andrew Padilla, Andrew Chavez and Brian Lopez — ripped her shirt, pulled her into a bathroom and threatened her with sexual violence, according to police and court accounts.
There were five private security guards on campus at the time of the incident, but none were patrolling that particular hallway. A District-operated video camera trained on the bathroom entrance was malfunctioning, according to court documents.
After the incident, the District spent nearly $200,000 upgrading the video-surveillance system at the school.
The case also went through criminal proceedings. The trio were each convicted of false imprisonment and conspiracy charges; Chavez was also convicted of intimidation of a witness; and Padilla was also convicted of battery. In 2007, they were given suspended two-year sentences in a state juvenile detention facility.
Yet Riedel’s assertion, that schools and their contractors have a duty to provide safety, has hit a wall of dense legal arguments. A judge in federal District Court tossed out all claims against Superintendent David Cockerham and former Middle School principal Ben Gurule in early 2008, on the grounds that government officials are immune from liability except in cases of knowing, active, targeted, egregious behavior that shocks the conscience, court documents state.
The same federal judge also dismissed claims that Akal Security, the District’s security provider at the time, violated the victim’s constitutional right to due process under law. However, the judge did leave the door open for negligence charges to be filed against Akal in state District Court.
Riedel did just that in March 2008, and now he is battling to hold a jury trial on that claim. Akal has requested that the state District judge reach a decision on the case’s merit independently, without a jury.
Akal’s lawyers argue in court documents that the company owes no legal duty to the victim and her parents. The family was not an “intended beneficiary” of the security contract with the District, and even if it was, Akal followed that contract to the letter, court documents state.
“Not only must Plaintiff show that Akal breached the contract, but also that it was the breach of that specific provision of the contract which caused Plaintiffs’ alleged damages,” a Dec. 2008 brief states.
To counter that, the plaintiffs point to a few specific provisions including the purpose of the contract, which appears on the first page.
“To promote a safe, secure learning environment with minimal impact to the look and feel of the educational institution,” the contract states. “To ensure a campus free from violence, intimidation, drugs, gangs and other physical hazards, both seen and unseen.”
Riedel isn’t the only one looking closely at that contract. The District filed a separate cross-claim against Akal in February 2008, claiming that the company had breached an obligation to insure the District to the tune of $5 million — insurance that would cover legal defense and judgment costs in a case like this.
The District also made a separate breach-of-contract claim that would seem to support the victim’s main argument against Akal.
“At the time of injuries to the (female victim), alleged in Plaintiff’s complaint, Akal failed to provide one or more of the security services it was required to provide by the Agreement, including, but not necessarily limited to, the required number of security guards, who were visible and accessible to the public in assigned areas, including the hallway,” the District’s claim states.
There have been no subsequent hearings on that claim.
Akal’s contract, which was about to be terminated when the incident occurred, was worth approximately $300,000 per year. Since 2006 District security has been provided by ProSec Security, a private company owned by former School Board member and current Rio Arriba County Commission Chairman Elias Coriz.
A hearing on the jury-trial issue between the victim’s family and Akal is on hold while the state District Court fills a judicial vacancy in Tierra Amarilla, Riedel said. Española attorney Sheri Raphaelson has been appointed to the bench and will be sworn in April 17. She replaces Timothy Garcia, who has been appointed to the state Appeals Court.
Akal and District lawyers did not return calls seeking comment.
On the other front, Riedel is still trying to keep the federal suit alive. He has a pending motion arguing that despite the issuance of a final order, the court has still not addressed claims against the District itself and the middle school. Government agencies do not fall under the same immunity protection as government employees, the motion argues.
There has been no ruling on that motion.
The victim and her parents long ago dropped federal claims against the three assailants’ parents. Riedel said those claims were dropped in part because the law caps parental liability at a few thousand dollars, and also because at least one potential witness was unwilling to testify against the boys themselves.
The victim’s family is seeking medical expenses and damages for trauma suffered. Of all the parties involved, the one with the deepest pockets is Akal, a multi-million dollar international security company headquartered in Sombrillo.