Days after Ethan Crumbley’s arrest, his parents were charged with involuntary manslaughter, a unique and aggressive response to a national outcry for justice. While it remains to be seen whether a jury will find the parents guilty, it serves as a reminder that the criminal justice system is devoid of any obstructions to holding those accountable for their conduct. Unfortunately, the same cannot be said of the civil justice system.

Following the arrest of the parents, some members of the community and local media turned their ire on school officials. Questions surfaced about what the faculty, administrators and counselors knew prior to the shooting and whether the tragedy could have been averted with a reasonable intervention. The more important question is whether the law required school officials to learn more and do more under the circumstances. Unfortunately, since 1964, the answer has been a mind boggling — no.

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Immunity protection of schools

Governmental immunity protects school officials from claims of ordinary negligence. To hold a school liable for the injury or death of a student, plaintiff must prove “gross negligence” to avoid immunity. Gross negligence is defined as “conduct so reckless as to demonstrate a substantial risk of concern for whether injury results.” Tarlea v. Crabtree (In re Estate of Tarlea), 263 Mich. App. 80 (2004) Certainly, in this case, where faculty members became aware of Ethan surfing his phone for ammunition and drawing disturbing pictures depicting guns, blood and persons bleeding — along with the words, “my life is useless, the world is dead” — an argument could be made that the faculty recklessly disregarded warning signs.

However, even if gross negligence could be established, school officials would likely be granted immunity for failing to demonstrate that their conduct was the proximate cause of the shooting. Robinson v. City of Detroit, 462 Mich 439 (2000). Under Robinson, proximate cause is defined as the “immediate efficient, direct cause preceding the injury.” Id. Criminal conduct has been examined in a line of cases dealing with sexual assault committed by a student upon a student. In those cases, courts have unequivocally found the conduct of the assailing student to be the proximate cause regardless of location and prior knowledge of school officials.

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The state-created danger doctrine

One possible avenue for imposing liability is the “state-created danger” (“SCD”) doctrine recognized by federal law. Under this theory, families may recover damages if they can establish: (1) an affirmative act by the school which either created or increased the risk to the students exposed to the third-party act of violence; (2) actions of the school that place the specific victims at a “special” risk of harm (as opposed to a general risk to the public at large); and (3) the school’s knowledge that it’s actions specifically endangered its students. Cartwright v City of Marine City, 336 F. 3d 487, 493 (6th Cir. 2003).

Unfortunately, while this theory of liability exists, it has been largely criticized as futile. A suit brought against the government or its officials on the grounds that they failed to intervene to stop or prevent a tragedy has nearly always resulted in a finding in favor of the government. On numerous occasions the courts have rejected claims under the SCD because the challenged conduct either was not an affirmative act at all or did not create or increase the risk of danger to the plaintiff. One dramatic example can be found in the case of Sargi v Kent Bd. of Educ., 70 f. 3d 907 (6th Cir. 1994) where a student (with a known cardiac condition) collapsed on a school bus due to heart failure. The driver failed to call for help due to defective communication equipment, neglected to transport the child to a hospital and finished the route before taking the child to her home. As a result, the child fell into a coma and died three days later. In dismissing the claims against the Board and other key figures, the court found that the “evidence [fell] short” of establishing that the Board or its employees “created a danger to which [the child] was not already exposed.” Id at 913.

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Perilous Public Policy?

The question our courts should be asking is whether state and federal immunity laws created to protect government, including schools, creates an unsafe environment for our children. While we may not wish to transpose our educators into public safety officers, the prevalence of mass shootings may require it.

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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.