Personal Injury Law

Fight Club Lawsuit Filed On Behalf Of Mentally Challenged

By Jane Akre

A lawsuit has been filed by the mother of a mentally disabled 21-year-old man, allegedly forced to fight at the state hospital in Corpus Christi, Texas.

The suit alleges the staff encouraged fighting for their entertainment.

"It was bare knuckle fighting, basically they had them beat the hell out of each other for their own amusement, says Reynoldo Pena, of Hilliard Munoz Guerra LLP , an IB partner, representing the mother.

Inez Hernandez of Corpus Christi filed the civil action on behalf of her son Armando Hernandez, Jr., who has the mental capacity of a 12-year-old. 

"He is not aggressive, he is kind hearted," she says of her son.

While living at the Corpus Christi State School in 2007 and 2008, Inez Hernandez complained to school officials after her son told her what had happening.  

"Our client was knocked unconscious when he wouldn't fight. What happened was after his mother complained, they put her son in lock down and threatened him, 'You better not talk to your mom,' they literally treated them like animals, like they were sub-human."

The staff is alleged to have threatened Hernandez by putting a blanket over his head and beating him if he didn't participate, reports the Austin American-Statesman. 

Texas Law Protects the School

Criminal charges have been filed against six former and current employees.   Four have been arrested while two remain at large.

But those charges find no fault with the state. That's because Texas has sovereign immunity that prevent it from being sued.  Pena says that lets the state off the hook for any liability. 

"Intentional torts are off the table. The state cannot be held liable for their employees intentional torts such as assault. You can't sue for that, there are no remedies. If they intentionally hurt somebody there is no lawsuit."

The Cell Phone Smoking Gun

So instead Hilliard's firm has filed a negligence lawsuit naming the state Department of Aging and Disability Services for failing to provide a safe and hazard-free facility, and for failing to properly screen employees. 

Texas state law already caps civil damages at $250,000.

"This lawsuit isn't about money," says Pena. "It's about accountability by the state. They let this go on. We are trying to do the right thing for people who are voiceless," he says.

What opens the door to the civil action is the evidence on the cell phones.

In this case, employees are not only alleged to have encouraged the brawl, but they recorded the fights on their cell phones, which were turned over to police this month.  

The injury involved "tangible personal property" from the state.

The law firm believes that the assaults occurring on state land with the aid of state-owned cell phones may open the door to civil remedies for negligence and failing to protect.

Hernandez is in at least three of the videos fighting.  

"If not for the cell phones, we never would have identified the issues; but for the cell phones, they we never would have been subject to a suit," says Hilliard to Kiii-TV. 

Texas Crisis In Mental Care   

Texas Gov. Rick Perry declared a legislative emergency last February to protect the mentally challenged residents in the state's 13 schools.

The state is under pressure to overhaul residential mental facilities after a December Justice Department investigation found hundreds of cases of abuse and as many as 53 deaths occurred in facilities.

At the Lubbock State School the Justice Department found 114 residents died from September 2007 through 2008.   53 of those deaths were related to pneumonia, respiratory failure or bowel obstruction, all preventable conditions.   

The department overseeing mental health has increased late-night inspections as an added security measure at the 13 state schools and is considering measures to consolidate schools and create community-based homes.

"They cannot do this to human beings," Inez Hernandez says, 'They just cannot."

A bill currently in the legislature would allow state agencies, such as schools, to be held accountable and liable for injuries suffered by residents.  #  

Full post as published by InjuryBoard on March 27, 2009 (boomark / email).