Written By Chris Dolan and Aimee Kirby
This week’s question comes from Laurie in San Francisco, CA, who asks: I want to understand why attorneys are not interested in my daughter’s case. Fellow students physically bullied my daughter for years in middle school. When it started happening, I thought the best approach was to let the kids work it out amongst themselves. When it poured into her second year in middle school, I talked to her teachers about it, and they all indicated they didn’t see anything happening in their classrooms. By her last year in middle school, it got really bad. She withdrew from us at home, was very anxious, and I believe she was receiving threats on social media. She wouldn’t talk much about it, and I think the teachers telling us that they didn’t see it happening made her feel like maybe it was not occurring. My family and I decided to move school districts so she could start fresh at a high school without bullies. She has been doing much better at her new school this year and will be a Sophomore next year. As she has gotten some distance from what happened, she has told me more details of what occurred for three years in middle school.
My daughter told me that three girls, whom she refused to name, would follow her in the hallways at school weekly and push and shove her while laughing at her. The girls would make fun of her clothing and hair (my daughter is half African American and half white in a predominately white school). They would also find her during lunch and get people to join them in making fun of her. She also received texts and calls from various numbers she didn’t know. My daughter didn’t save these horrible, mean texts, and we have no way to prove this happened. Is it too late to sue for what happened three years ago? Attorneys told us we missed a deadline in the law and refused to take the case.
I am so sorry to hear what your daughter endured during middle school. Many dismissed bullying when I was in school as “kids being kids.” Today bullying is finally getting attention throughout our country. With the advent of social media, bullying has taken on a new form, far from prank calls and toilet papering houses to disturbing behavior that can hurt children very deeply. These cases are just starting to get the justice they deserve as everyone slowly abandons the “kids being kids” mentality.
The first thing an attorney will do is determine the Statute of Limitations for your cause of action. The Statute of Limitations for a civil case dictates how much time you have to settle your case or file a civil lawsuit. You would have two separate cases here. One case would be against the school district for negligent supervision of your daughter, and the second would be against the parents and children who did this. Depending on the facts, sometimes the actions of a minor can be attributed to the parents. Both cases have different Statutes of Limitations.
Claims and lawsuits against Government Entities are complex and generally can only be handled with an attorney. When you sue a Government Entity, like a School District, you must give them notice of the claim within six months of it happening and file a civil lawsuit generally within one year of it occurring. If you fail to file the Notice of Claim within six months, you can seek relief from the government entity and, if denied, the court if you are within one year of the act happening. There are exceptions to these requirements for childhood sexual abuse victims because the law recognizes that children often suppress these memories until adulthood as a coping mechanism.
If you are not suing a Government Entity, the general statute of limitations for personal injury is two years from the date of loss unless the child is a minor. Then you have 18 years plus two years for the Statute of Limitations to expire. That means that you would have the possibility to sue on your daughter’s behalf the parents and the children that did this. The case appears to have lapsed against the school district if a year has passed since the last bullying incident.
However, when considering what actions to take in cases involving children, we always counsel our client on what the recovery may be and what the litigation would require of the minor and their family throughout the litigation. In this case, the causes of action against the minors and parents would be intentional torts. That means they are not an accident but an intended act. The problem with intentional torts is that there is no insurance for the acts, so these parents would have to have liquid assets to make any settlement offer. Without applicable insurance, any recovery will be difficult.
The other consideration is the mental well-being of your daughter. You could option filing in small claims court, which has a cap on the award amount. However, in that situation, your daughter would still have to appear in court, tell the judge what happened, and deal with facing these children, perhaps again. Filing in Small Claims Court limits in-person depositions and written discovery. The litigation experience is challenging for children, so we only suggest it when the financial recovery is significant and can help them in their future. It is a balancing act that only a parent can decide for their child as to whether filing makes sense. In your case, there was a limitation on suing the School District because the statute had expired to file. Additionally, the lack of insurance to cover the minors and the parents, and the amount you would be awarded, are grounds for which the attorneys you have spoken to may have decided not to move forward with representing you.
I am so sorry this happened to your daughter and that the law, both criminally and civilly, doesn’t have the justice she requires. I hope the distance from these kids and the new school help your daughter and your family heal.