Hillsborough County School District asks judge to dismiss lawsuit in Isabella Herrera's death

7:17 PM, Dec 27, 2012   |    comments
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Tampa, Florida -- The Hillsborough School District says the lawsuit filed against the school district for the death of a special needs child earlier this year should be dismissed. 

School district attorneys filed the 26-page response to the lawsuit by Isabella Herrera's family on Wednesday in the U.S. District Court.

Isabella's family filed the lawsuit on Nov. 30 saying the district violated their daughter's federal rights as a special needs student. The complaint says the district violated the Rehabilitation Act, the Americans with Disabilities Act and the 14th Amendment to the U.S. Constitution providing equal protection.

SEE ALSO: Parents say list of mistakes led to daughter's death

On Jan. 25, Isabella Herrera's mother, Lisa, boarded her 7-year-old daughter's school bus to find her lifeless. Ultimately, it was Lisa, not the bus aide, calls 911 for help. On the school bus camera video, Lisa can be heard crying out to 911, "I need an ambulance my daughter is not breathing she's blue."

Her parents said Isabella suffered from a neurological disorder and on the school bus ride home from Sessums Elementary Isabella's wheelchair is not tilted back, as required, causing her head to bob back and forth.  

The video shows about 17 minutes into the ride she's in distress the bus aide is heard saying she's having trouble breathing. Isabella dies the next day.

In a response filed by the Hillsborough School District Wednesday, attorneys say the Herreras have no factual proof the district showed "deliberate indifference", a "breach of duty", or violated Isabella's rights in an "outrageous and willful manner".

The district says, "Since Isabella Herrera was not in the custody of the school board, the school board had no affirmative duty to protect her."

Tampa trial lawyer and Stetson College adjunct professor David Tirella disagrees with the school district saying the Herrera's will win that argument.

"I think they will prevail on that point. There's a special relationship the school board should have known that this child may have problems," Tirella says. "They should have anticipated with special training and special equipment if needed or should not have taken the child on because that gives the parents false hope and false security."

By filing in federal court, Tirella says there are no caps on damages and, if the Herreras win, the district may pay a high price for Isabella's death.

"The loss is priceless because they can't get their child back, all they are left with is to get justice, accountability, to safe guard other future students," Tirella says. "What's the value of a child lost? In my opinion, it's millions of dollars."

The Herrera's family attorney would not comment Thursday pending their response to the district's position. 

Tirella says it could take up to two years before this case goes to trial. He adds the district's motion to dismiss would force the Herrera's attorney to narrow their complaint.

Isabella's death is one of two deaths of special needs students this year forcing the school district to review its policies and training.

In the meantime, the Hillsborough School Board has told employees and bus staff to call 911 for help first before calling a supervisor if a student needs help. The work group will meet again next month to continue drafting changes to district policies.

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