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Provo • Attorneys for the Washington County School District argued before the Utah Supreme Court on Wednesday that the district should be immune from a lawsuit filed by the parents of a student killed while handling a "prop" pistol approved for use in a school production of "Oklahoma!"
Ron and Cathie Thayer sued police and school officials in U.S. District Court alleging a safety plan for the .38 caliber revolver was repeatedly violated in the weeks before their son, 15-year-old Tucker, died on Nov. 15, 2008.
Tucker was struck in the head with a blank several hours before a performance of the school play and died later.
The Thayers' lawsuit alleges that despite police requirements that the gun be transported, controlled and fired only by an adult, it was often carried to Deseret Hills High School by the owner's minor daughter in a lockbox in her backpack. The gun and blanks were left in the pack, unattended, in a sound booth, the suit alleges.
Thayer, who knew the combination to the lockbox, was left unsupervised as he fired — and played with — the gun during the last two weeks of rehearsals, the suit alleges. Both theater teacher Michael Eaton and gun owner David Amodt knew Tucker was firing the gun during rehearsals and performances, the suit alleges.
The wrongful death and negligence lawsuit filed by the Thayers in 2009 names the city of St. George and school resource police Officer Stacy Richan; the Washington County School District, Eaton and Assistant Principal Robert Goulding; and Amodt.
But the lawsuit hit a snag in moving forward in federal court when Judge Dee Benson sent the case to the Utah Supreme Court for clarification on whether the school district could seek immunity, which would bar the Thayers from suing the district.
Utah law generally bars claims against government entities, except when the government waives immunity. Government in Utah has waived immunity in cases where government employees have committed negligent acts during the course of employment with a government agency.
But there are exceptions to such waivers, including when a claim arises from the issuance of a license or approval by a government agency.
Attorneys for the school district on Wednesday argued the school's approval to use the prop in play constitutes a regulatory decision, which makes the district immune from the Thayers' lawsuit under Utah law that protects government agencies.
The Thayers' attorney, Mike Welker of St. George, said the school district is not immune from litigation.
"I believe that the exception is narrower than what the school district is trying to argue," Welker said. "When the [school district] is making operational decisions at their school, those are operational decisions, not decisions of a regulatory nature that the exception is designed for," Welker said.
The arguments took place at BYU's law school in front of an audience of students. The high court took the arguments under advisement and will issue an opinion at a later date.
Once the Supreme Court rules on the immunity issue, the case will continue on in federal court, Welker said. The Thayers have already settled their claim with Amodt.
The Thayers are seeking a total of at least $2,028,253 in damages for hospital bills, funeral expenses and pain and suffering, court documents state.
Ron and Cathie Thayer attended Wednesday's arguments at BYU. Cathie Thayer wore a button on her jacket with a photo of her son. The Tuckers designated their attorneys to speak to the media on Wednesday, but have made harsh statements about the school district in the past.
"In my opinion, they killed my son," Cathie Thayer said in a 2009 interview. "They are the ones that put the gun in his hand. That is just not right. They shouldn't get away with it."
The suit contends that prior to approving its use as an off-stage sound effect, Richin and Goulding did not inspect the gun, which could fire live ammunition and had been modified to have a "hair trigger."
Richin set safety rules, but neither he nor school officials enforced them, explained them to students or alerted parents, the Thayers allege.
After the shooting, St. George police said Tucker had removed the gun from a locked cabinet and it somehow discharged.
The lawsuit alleges the gun and blanks were left in the sound booth on Nov. 15, and that an unnamed adult "became concerned that Tucker might be planning a practical joke with the gun, such as firing the weapon at an inappropriate point in the play."
But no one said anything to the boy, it added. The gun was left in the booth, where no adults were present, and it "soon thereafter" discharged near the boy's head, the suit said. He was fatally injured by fragments driven into his skull and gunpowder gases.
The suit also claims the Thayers' constitutional rights were violated, and that school officials and Amodt violated a state law that prohibits providing a gun to a minor.
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