Metropolitan News-Enterprise


Monday, April 16, 2007


Page 1


C.A. Upholds Judgment for Teacher Accused of Abusing Pupils

Judge Properly Instructed Jury That Instructor Was Not Liable if Force Used Was Reasonable, Panel Says



By TINA BAY, Staff Writer


A court properly required autistic students suing their teacher for battery to show that he acted unreasonably and with the intent to harm when using physical force to control their conduct, the Fourth District Court of Appeals ruled Friday.

Div. One unanimously upheld jury instructions by San Diego Superior Court Judge Yuri Hoffman that expanded the normal definition of battery—a harmful or offensive touching—to include the elements of unreasonableness and intent.

Based on Hoffman’s instructions, a jury concluded that a teacher at an Escondido Union School District teacher special education preschool was not guilty of committing battery against two of the school’s students.

Nicolaysen Center students Austin B. and Jessica B., as they were identified, had alleged in separate but identical lawsuits that preschool instructor Shawn Tyler Priest had engaged in abusive conduct toward them while they were attending the school.

Excessive Force Claimed

Both severely autistic, the minors claimed Priest responded to students’ behaviors by applying excessive physical force or pressure to parts of their bodies—for example, by pinching a student, clinging to the hand of a student attempting to escape so tightly that his knuckles turned white, putting pressure on a child’s shoulders to the point where the child would cry, and stepping on students’ fingers and feet.

Some of this claimed conduct was allegedly directed at Austin, who was a student in Priest’s class. As to Jessica, who was enrolled in a similar class, Priest allegedly pinched her once and on another occasion bent her hand back to force her to leave a room.

Upon learning of Priest’s actions, the school’s principal, Janice Zelasko, filed a report with Child Protective Services alerting it to the possibility that Priest was abusing students.

Civil Rights Action

The plaintiffs sued Priest, the school district and other Nicolaysen Center teachers on various grounds including battery, negligence and violation of the Unruh Civil Rights Act. Hoffman partially granted the defendants’ motion for summary judgment, leaving only the battery, negligence and civil rights claims.

At trial, Priest denied inflicting pain on any child and explained that the education of his students required touching. For example, he said, he placed his hand on a child’s shoulder or around their neck to “motor them through activities,” but never to exert a response from the child.

He said he used heavy touching, hugs, and pressure on different parts of Austin’s body in order to help him pay attention to the task at hand and get him through an activity. Admitting he pinched Jessica, Priest explained he did so only as a gesture to teach the child—whose mental age at the time was 12 months—not to pinch other students.

‘Deep Pressure’ Technique

An occupational therapist who worked at the school testified that “deep pressure” and other touching techniques were necessary to soothe autistic children, whose behaviors include lack of verbal ability, biting themselves and others, head-banging, running away, repetitive motion conduct, and flinging themselves to the floor and thrashing. Austin in particular “craved” pressure on his body, she said.

After the plaintiffs’ case-in-chief, Hoffman granted the defendants’ motion for nonsuit as to the civil rights claims and as to the battery claim against all the Nicolaysen Center teachers who had been sued except Priest.

At the close of argument, the judge issued a modified jury instruction on the elements of battery. In addition to finding that Priest touched the plaintiffs and that they were harmed or offended by the touching, he stated, the jury was required to find he intended to touch them and that the touching was unreasonable.

Further, Hoffman modified the special verdict form for battery to ask the jury whether Priest intended to harm or offend the students, and whether his touching of them was reasonable under the circumstances.

On appeal, Austin and Jessica contended Priest’s intent and reasonableness were not an issue because the touching was non-consensual or otherwise unlawful.

Writing for Div. One, Justice Gilbert Nares said Priest’s conduct was neither unlawful nor non-consensual:

“[T]eaching autistic children by touching and guiding them is not unlawful, and students, by attending school, consent to some touching necessary to control them and protect both their safety and the safety of others. Indeed, plaintiffs did not contend at trial that Priest could not touch them at all.”

Because some touching was needed to control and guide the plaintiffs in this “unique situation of a teacher/pupil setting,” Nares wrote, both the intent to harm and the reasonableness of the touching were at issue and properly included in the instructions and special verdict form.

He noted:

“If the reasonableness of the touching was eliminated as an element of battery in such circumstances, that could lead to a form of strict liability for battery as to special education teachers that engage in therapeutic touching of students.”

Justices Judith L. Haller and Joan Irion concurred in the opinion.

The case is Austin B. v. Escondido Union School District, 07 S.O.S. 1852.


Copyright 2007, Metropolitan News Company