District Liable for Attack, School Bus Driver Claims

John VerMaas, a substitute bus driver for the Vista school district, had never been to Fallbrook High School until he was assigned as a driver for the Buena Vista High junior-varsity football team.

What happened the night that he took the team up to play the Fallbrook Warriors has left the husky 24-year-old VerMaas and his family battered, shaken and afraid ever to return to the tree-lined, ranch-style campus.

As his wife and two young daughters watched in helpless horror, VerMaas was allegedly knocked to the ground and repeatedly kicked by three Fallbrook teen-agers. He suffered a broken nose and two broken ribs.

The violent melee last fall ended only when a retired sheriff’s deputy--attending the game with his son--heard screams and came running.

Ribs Made a ‘Loud Pop’

“When they hit me in the back of the head, it knocked me out,” VerMaas recalled. “I hit the ground and shook my head. As I tried to get up, one of them kicked me in the ribs and I screamed. My ribs broke and made a loud pop.”

Even after the ex-deputy rescued him, VerMaas remembers being taunted by his assailants.

“My girls were sitting in the bus, yelling and screaming: ‘Stop beating up my dad,’ ” VerMaas said. “There was blood all over the place. I got my breath and tried to stand up but I couldn’t. They started telling me that I was going to jail because they were 17 and under age.

“It was like they’d done this before, and I was going to jail just because I was protecting myself.”

Although he declined immediate medical attention, VerMaas was treated in the emergency room later that night and spent the next four days in Tri-City Medical Center in Oceanside. He still complains of sharp pain in his right side and an inability to lift or push. He said his daughters, 4-year-old Nicole and 3-year-old Jhameelae, have had to undergo psychological counseling.

Two 17-year-old students were suspended from Fallbrook High because of the attack and are now attending Ivy Continuation High School, across the street from Fallbrook High. Ivy serves students with discipline or learning problems.

In Juvenile Court, one pleaded guilty to misdemeanor battery, and the second had assault charges dropped (he pleaded guilty to drunk driving in a separate case). Both were placed on probation.

“My lawyer got me out of it,” one said. “It’s all over now.”

The third assailant, Ismael Gomez, 18, a former student, pleaded guilty to misdemeanor battery in Vista Municipal Court and was fined $500 and put on a year’s probation.

Civil Lawsuit

The case has now spawned a civil lawsuit, with VerMaas and his attorney, Manuel Corrales Jr., asserting that the Fallbrook Union High School District was negligent in its supervision during the football game and derelict in its duty to protect citizens from dangerous students.

“I think it makes sense to hold somebody responsible so it does not continue,” Corrales said. “We can’t just allow student violence to run unchecked without holding somebody liable.

“If the district wants to take the position that they’re not liable, that it’s the parents fault, I have to disagree,” he said. “Once a school district takes custody of students, I think they assume the responsibility of the parents.”

The suit poses two important legal and public policy questions with implications far beyond North County: What responsibility does a school district have when its students turn violent? Can a district be held legally and financially liable if its students attack and severely injure someone?

Similar questions are also at the core of a lawsuit being prepared against the San Dieguito school district by a Leucadia family following an attack in their driveway last June.

That suit, being prepared by Oceanside attorney Michael Klein on behalf of Tom Gabel and Michaela Murphy, will assert that the school district failed to correct violent tendencies among its students and may actually have encouraged them.

The Leucadia incident was one of three beatings inflicted by San Dieguito High students. Seven students and recent graduates, all star athletes, have now been convicted and sentenced to punishments ranging from 45 days in county jail to probation and community service.

Trying to Break New Ground

The Gabel-Murphy lawsuit will go even further than VerMaas in an attempt to hold a school district accountable even for the off-campus behavior of students.

“Definitely, we’ll be seeking to break new ground,” Klein said. “It’s certainly not a slam-dunk situation. Our position is that the district had a responsibility to take actions that might have helped people avoid being injured.”

As Klein sees it, that responsibility stems from the fact that school employees knew, or should have known, that their students possessed violent temperaments.

“Obviously there is not carte-blanche responsibility upon the school for anything done by students anytime anywhere,” Klein said. “That’s not what we’re positing. Our theory is that the school allowed and even fostered the attitudes that led to violence.”

Although the combatants were different, many of the details of the VerMaas incident bear a striking resemblance to the San Dieguito attacks: Beer-drinking students out on a Friday night, lewd comments directed at a woman, obscene hand gestures, an incendiary challenge (“kick your ass”) and then kicking a victim when he is on the ground.

Damage Claim Rejected

The Fallbrook school board, which prides itself on maintaining a safe campus and taking a no-nonsense approach to student misconduct, rejected VerMaas’ claim for $550,000 in damages for himself, his common-law wife and their daughters.

District officials say their attempts to prevent violence were adequate--an Oceanside security firm had been hired for the game--and that they cannot be held responsible for the attack on VerMaas.

School board member Ralph K. Enander, who was board president when the two students were suspended and VerMaas’ claim was rejected, said VerMaas contributed to his downfall by parking in the wrong location and brandishing a metal bar at the teen-agers. The incident occurred Sept. 11 and the claim was rejected Oct. 27.

“As board members we are all very much opposed to violence,” said Enander, a board member since 1974. “On campus, we have a responsibility for the students as if they were our children.

“We feel that what we provided in terms of security was adequate,” he said. “We have to strike a balance between what is reasonable and what we can afford. The point must be made very emphatically: He (VerMaas) had a tire iron when he went out to the students. That’s a red flag for me.”

VerMaas, a substitute driver for two years, said he did not have a tire iron but rather a 12-inch-long metal “tire checker,” which is used to “thump” tires on the 71-passenger bus to check for proper inflation.

Threats Claimed

He said he carried the metal bar only because two of the three youths had already threatened them.

“I knew I was in trouble when they came down the hill at a high rate of speed in the Subaru,” VerMaas said. “They were fishtailing and peeling out and they skidded to a stop right in front of me. They started coming over to me. I was backing up, with the bar at my side.

“I was telling them, ‘Hey, I don’t want any hassles. I just want you to slow down because my kids are in the area,’ ” he said during an interview this week. “The next thing I knew all three hit me in the gut so hard it made my bowels move. I yelled, ‘enough,’ and I took a swing at the guy in front of me. His buddy pulled the bar from my hand and hit me across the face with it, breaking my nose.”

VerMaas’ version of events is supported both by a fellow driver and by retired sheriff’s deputy Jim Gray, a commanding presence at 6-foot-4, 250 pounds, who saw the incident from afar and came running.

One of the 17-year-olds admitted to sheriff’s deputies that the trio had been drinking while parked in a shady and somewhat isolated part of campus.

Joined by Family

VerMaas had driven the Buena Vista team to Fallbrook in the mid-afternoon and then been joined by his wife, Marcy Denise Clester, and their daughters. The family went to dinner and then returned to the bus.

VerMaas said he had been directed by an unnamed coach to park in unpaved area rather than the usual, and more brightly lighted, parking area closer to the football field.

Corrales is not surprised that the Fallbrook school board has rejected his client’s claim for damages. He belongs to the Escondido firm McInnis, Fitzgerald, Rees, Sharkey and McIntyre, which has done civil litigation on behalf of the San Diego school district.

“The (Fallbrook) school district needs a theory as a defense, and their theory is that my client brought on the attack,” Corrales said. “That belies the fact the school board kicked the two guys out of school. If they really believe it’s my client’s fault, then why did they expel the two?”

In one regard, the VerMaas and Gabel-Murphy suits are taking opposite legal strategies.

VerMaas has initially sued the school district with suits against the individual students as a possible second step. The Gabel-Murphy suit may be filed first against the students and then later against the school district.

Fate of Case

The fate of the VerMaas suit may hinge on discussions of reasonableness and predictability, according to two specialists in the law governing public education in California. Neither is involved in the case.

Christina Dyer, chief counsel for the San Diego district, and Rob DeKoven, assistant professor at California Western School of Law, said the key issues will be whether school officials took reasonable steps to provide security and whether it was logical that they could have predicted that trouble might break out.

A school district does not have the same liability for a student as for an employee, Dyer noted.

A person who ventures on campus and is smashed in the nose by a janitor, for example, has a much stronger legal case for damages than one smashed in the nose by a student.

“An employee is an agent of the district,” Dyer said. “But there is not that kind of connection with a student. We are providing a service and students are using that service. We have assumed a general obligation to maintain order but not one to act as police.”

DeKoven, who has handled school cases for the American Civil Liberties Union, said courts have tended to guard school districts against damages except in cases where the students were clearly known to have violent tempers.

‘Too Big of a Burden’

“The courts have tended to say it’s too big of a burden for a landowner or employer or school district to be held for every situation imaginable,” he said.

Fallbrook High principal Dave Kuzmich declined to discuss whether the three teen-agers had had prior problems.

Corrales, VerMaas’ attorney, said he has no direct evidence that the trio had any history of causing trouble. But he said there had been other acts of vandalism toward buses by unknown students.

“The problem the school district has is that it had hired security,” Corrales said. “They hired security and they were on the campus, just not at the time and place my client needed them. Once you assume a duty for security, you can’t say, ‘Sorry, I was doing something else at the time.’ ”

VerMaas, who lives in Vista and attended high school in Oceanside, said his injuries have kept him from returning to his second job doing roof repair and home maintenance.

He hopes soon to become a full-time bus driver for the Vista district. Full-time drivers make upward of $12 an hour, compared to $8.29 for substitutes. The medical benefits are also better.

Even if he receives a coveted job as a full-time driver, VerMaas does not want to return to Fallbrook High School.

“I’ve got a phobia about going back to that place,” he said. “After something like this happens . . . I’ve turned down a couple of runs because they’re out to Fallbrook.”