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Supreme Court paves way for 'prop gun' lawsuit to move forward

Published May 26, 2012 8:46 am

High court • Suit filed by family of student killed by pistol for use in a play will proceed in federal court.
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The Utah Supreme Court on Friday paved the way for a negligence lawsuit brought by the parents of a student killed while handling a "prop" pistol approved for a school play to proceed in federal court.

The justices in a split decision ruled school districts can't dodge such litigation under a state law that provides immunity to government agencies.

"As far as the decision itself, it's a huge benefit to the citizens of the state to know that the school districts are in fact responsible to provide for the protection and safety of their students," said attorney Mike Welker, who represents the parents of 15-year-old Tucker Thayer. "A contrary ruling would have created riskier schools."

Ron and Cathie Thayer, of St. George, filed a lawsuit against police and school district officials in U.S. District Court alleging a safety plan for the .38 caliber revolver to be used in the production of "Oklahoma!" was repeatedly violated in the weeks before their son died on Nov. 15, 2008.

The wrongful-death action filed by the Thayers in 2009 named the city of St. George and school resource police Officer Stacy Richan; the Washington County School District, theater teacher Michael Eaton and Assistant Principal Robert Goulding; and gun owner David Amodt.

U.S. District Court Judge Dee Benson sent the case to the Utah Supreme Court to clarify whether the school district could seek immunity from the lawsuit. In its 3-2 opinion, the justices ruled the school district officials don't fall within the immunity provisions because of their behavior in allowing the gun to be on school grounds the day of Tucker's death.

"A governmental entity such as the school district may not insulate itself from suit by routinely authorizing and approving the negligent conduct of its employees," Justice Christine Durham wrote, with Justices Ronald Nehring and Jill Parrish concurring.

Justices Thomas Lee and Matthew Durrant joined together in a dissenting opinion, in which they argued there were not enough facts presented to the high court to determine the school district's immunity under a "licensing exemption" in the law.

"In my view, the district's immunity depends on the resolution of questions of fact that are not before us," Lee wrote. "I would highlight those questions and leave their resolution to further proceedings in the federal district court."

The high court's decision is the latest legal turn in a case that started when 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 lock box in her backpack. The gun and blanks were left in the pack, unattended, in a sound booth, the suit says.

Tucker, who knew the combination to the lock box, was left unsupervised as he fired — and played with — the gun during the last two weeks of rehearsals, the suit alleges. Eaton and Amodt knew Tucker was firing the gun during rehearsals and performances, the suit says.

Benson dismissed the city of St. George and Richan from the Thayers' lawsuit in February.

Attorneys for the school district in November argued the school's approval to use the prop in play constituted a regulatory decision, which makes the district immune from the Thayers' lawsuit. Assistant Attorney General Barry Lawrence said Friday the justices addressed an important legal issue that would likely arise in other cases.

"The scope of the permit immunity, as we called it, had never been clarified," Lawrence said. "What it means for our client is that the negligence claim against the school district will continue."

The Thayers have already settled their claim with Amodt. The family is now seeking a total of at least $2,028,253 in damages for hospital bills, funeral expenses and pain and suffering, court documents state.

Ron Thayer said Friday he is cautiously optimistic that the high court's decision may lead to a favorable outcome at trial. The family has been disappointed by seeing other defendants dismissed in the case, Thayer said.

"It's definitely a step in the right direction," Thayer said of the Supreme Court's decision. "The [school district's] attitude from day one has been 'it wasn't our fault.' The school to this day has never talked to us."

The Thayers' suit contends that prior to approving its use as an off-stage sound effect, Richan and Goulding did not inspect the gun, which could fire live ammunition and had been modified to have a "hair trigger." Richan 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 says 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.

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.

Ron Thayer said Friday that while he and his wife continue their legal battle, proceedings do little to ease the pain of losing Tucker and the "emptiness" of the family's home.

"Every day we're reminded," said Thayer of his son's death. "Last year, all his friends graduated from high school. This year all of his friends are going on missions. We don't get to enjoy that joy that other parents are enjoying."

mrogers@sltrib.com