Source: Virginian-Pilot (Norfolk, VA), February 3, 2012
Posted on: http://envfpn.advisen.com
A lawsuit claiming a boy was sickened by longstanding moldy conditions at his elementary school will move forward against the School Board and two of its employees, albeit with fewer claims, a judge decided this week.
Circuit Judge Rodham T. Delk Jr. dismissed claims of simple negligence in a written opinion issued Tuesday. The board, current facilities director Terry Napier and retired facilities director James Thorsen are covered by sovereign immunity because they were performing a governmental function, Delk wrote.
Sovereign immunity doesn’t apply to the suit’s claims of fraud and gross negligence, the opinion said. Delk also dismissed Superintendent Deran Whitney from the complaint, writing that the plaintiff failed to specify a claim for which he is liable.
Suffolk schools spokeswoman Bethanne Bradshaw declined to comment because the case is still pending.
The $7.85 million lawsuit, filed in 2010, says Deborah Simpson’s son grew ill the day he entered kindergarten at Southwestern Elementary in 2007. The 5-year-old experienced rashes, sinus infections and frequent vomiting. He became so sick he could hardly make it through a full week of school, according to the complaint.
The boy’s symptoms continued through first and second grade at Southwestern, the suit said. Doctors eventually diagnosed him with a mold allergy and recommended he switch schools. That request was initially denied.
Simpson’s complaint says she shared concerns about mold with building and central office employees, but administrators insisted it wasn’t a problem. The suit contends they tried to hide an infestation by cleaning classrooms before mold testing was done and allowing an untrained employee to conduct the testing.
The boy is now behind in school and faces long-term medical treatment because of mold exposure, the complaint alleges.
Constitutional claims outlined in the suit were dismissed a year ago by a federal judge. A jury trial on the remaining state law claims is scheduled for June 25 in Circuit Court.
“We obviously disagree with the judge’s call on the sovereign immunity question,” Simpson’s attorney, David Bailey, said Thursday. “But it doesn’t change that the case is going forward.”