A Calaveras County judge has dismissed two Mark Twain Elementary School District employees as defendants in a lawsuit filed on behalf of a kindergartner who nearly drowned in his teacher´s pool.
In June 2002, Mark Twain teacher Betty Hayes took her kindergarten class on a field trip to her Angels Camp home for a swimming party. A while after the party began, kindergartner James Allee was “spotted at the bottom of the pool, face down, not moving, and without a life preserver,” court documents said.
Terry Allee, James´ guardian, sued the school district, Hayes and her husband for negligence.
Dana Leary and Kim Smoot, school district employees who attended the pool party, were also listed as defendants. But at an Aug. 11 court hearing, Terry Allee voluntarily agreed to dismiss them.
James, now 8, has anoxic brain trauma as a result of the incident, according to the suit. According to his doctor´s notes in the court documents, James was under water for two to two-and-a-half minutes before Hayes revived him.
Also during the recent court hearing, Judge John E. Martin denied a request to throw out the suit made by the school district´s attorney, Luther Lewis of Johnson, Schachter, and Lewis in Sacramento.
The district is liable for school-sponsored activities where attendance is required, court documents said.
Lewis argued the district should qualify for “field trip immunity,” but failed to prove attendance was voluntary.
Judge Martin sided with the Allee´s attorney, Craig Boeger of Scranton Law Firm in Concord.
The district provided transportation and students received attendance credit for the event, Boeger said, according to court documents.
Hayes “specifically assumed responsibility” for placing a life jacket on James, documents said.
Prior to the party, James´ mother, Leigh Allee, told Hayes James couldn´t swim and needed to wear a life preserver at all times, court documents said. Leigh Allee provided Hayes with a life jacket.
According to court documents, an “assistant” removed James´ life jacket to put sunscreen on him. Before putting it back on, the teacher left James and went in to the house to check on other students.
When the teacher came back out, her son´s girlfriend said, “There´s a little boy that´s holding his breath a long time,” documents said.
Notes from a doctor´s appointment a month after the incident said, “James sleeps with parents. He seems to have a shorter attention span. He has bad dreams about ‘my accident.´ He talks a lot about dying.”
No trial date has been set.
Calaveras Enterprise story by Vanessa Turner. For more calaveras news, click: calaverasenterprise.com