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ST. GEORGE — The Utah Supreme Court ruled Friday that a federal lawsuit brought by the family of a boy who was killed while handling a blank- firing prop pistol before a school play can proceed.
In the ruling, the state's high court found that the Washington County School District, the city and others are not immune from the lawsuit filed by the family of 15-year-old Tucker Thayer. The boy's family is seeking more than $2 million in damages for wrongful death and negligence.
In November of 2008, Tucker was attending Desert Hills High School and taking an elective stagecraft class. His father, Ron Thayer, told the Deseret News Friday that his son was instrumental in building the set for the school's production of "Oklahoma!" due to his experience and skill with power tools.
"He built all the sets and he loved it," Thayer said.
According to the ruling, "theater instructor and school employee Michael Eaton wanted to fire blank bullets from a real gun, rather than use a prop gun. David Amodt, the father of a student involved in the production, offered his Smith & Wesson .38-caliber, six-shot revolver for use in the musical."
Eaton asked Stacy Richan, the school's resource officer from the St. George Police Department, about using the gun because school policy and state law prohibited the use of firearms on school grounds, the ruling states. Richan approved it on the condition that only an adult transport the weapon to and from the school, that the gun would be in a locked container and in an adult's possession when not in use and that only an adult could handle or fire the weapon.
Goulding agreed with officer Richan’s decision and authorized use of the gun during the production, subject to the conditions officer Richan had imposed.
Richan approached the school's vice principal, Robert Goulding, about the presence of the gun on school property and told Goulding that he had authorized its use for the play in the production.
"Goulding agreed with officer Richan’s decision and authorized use of the gun during the production, subject to the conditions officer Richan had imposed," the ruling states.
Still, Tucker was allowed to hold and fire the weapon, according to the ruling, and on Nov. 15, 2008, the teenager was in the sound booth when the gun went off.
"The gun discharged near his head, and although the firearm was loaded with a blank cartridge, the muzzle blast drove skull fragments into Tucker's brain," the ruling states. "He died later that night."
Ron and Cathie Thayer sued the city of St. George, the Washington County School District, Richan, Eaton, Goulding, and Amodt in federal court. Ron Thayer said Friday that neither he nor his wife knew their son had access to a gun at the school.
"We found out at the hospital, after we found out he was dead," Ron Thayer said. "They send out permission slips to watch movies but not one parent was notified that a real gun was being used."
The school district, the city and Richan, Eaton, Goulding and Amodt argued that "the conduct of school officials and those acting on the school district’s behalf constituted the “issuance ... (of a) permit, license, certificate, approval, order, or similar authorization such that the school district has retained immunity," the ruling states.
We found out at the hospital, after we found out he was dead. They send out permission slips to watch movies but not one parent was notified that a real gun was being used.
–- Ron Thayer, father
The school district conceded that while officials did not "issue a permit, license, certificate, or order allowing the presence of the gun on school grounds," the exception still applies by way of the authorization of the gun being on the school's grounds by the resource officer and vice principal.
Because this was a new question of state law, the federal court turned the issue over to the Utah Supreme Court, which found that the licensing exception did not apply because the "licensing exception does not apply to the conduct of school district officials and those acting on the district’s behalf. Officer Richan’s and vice principal Goulding’s authorization of the presence of the firearm on campus was not a formal, official authorization by a governmental body or employee endowed with regulatory power to issue such an authorization," the ruling states.
Allowing the school to claim immunity in the face of "negligent conduct of its employees" would nullify the waiver of immunity for acts of employee negligence that is part of the of the Governmental Immunity Act.
"Were we to interpret the licensing exception to include such routine operational approvals, the waiver of immunity in employee negligence cases would be rendered useless because governmental entities would all have the ability to circumvent the provision," the ruling states.
Justice Thomas Lee wrote a dissenting opinion, though, stating that there needed to be further information on what caused Tucker's death — whether it was alleged negligence or "issuance of an authorization."
For now, the boy's family is counting the ruling as a victory, Ron Thayer said. But they aren’t getting their hopes up.
"We don't want to get our hopes up and get them dashed again, but we won this one," he said. "Until we know for sure that's it's moving forward (it's just) one more hurdle."