Law & Courts

$2 Million Settlement Reached in Death of Student

By Karla Scoon Reid — June 14, 2005 3 min read
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An Illinois school district has agreed to pay $2 million to settle a wrongful-death lawsuit filed by the parents of a 6th grader who choked to death on marshmallows while playing a classroom game.

Catherine “Casey” Fish, 12, was playing “Chubby Bunny” with three students at Hoffman Elementary School in Glenview, Ill., a northwest suburb of Chicago, on June 4, 1999. The game’s participants stuff full-size marshmallows in their mouths one at a time until they are unable to say “chubby bunny” aloud.

Casey placed four marshmallows in her mouth and soon after started showing signs of distress. School staff members unsuccessfully attempted to revive Casey, first by trying the Heimlich maneuver and then CPR, according to Francis Patrick Murphy, the lawyer for the girl’s parents, John and Therese Fish.

The Fish family sued Glenview Elementary School District No. 34 as well as teacher Kevin Dorken in Cook County Circuit Court for willful and wanton negligence for failing to supervise the game. Mr. Dorken, who was Casey’s favorite teacher, was not in the classroom when the students were playing.

The lawsuit had gone to a jury trial and was settled June 2, after five days of testimony.

Supervision at Issue

Mr. Murphy said he argued during the trial that the Chubby Bunny game is a “choking hazard waiting to happen.”

“If you’re going to play it, you better be right there,” he said.

But officials of the 4,100-student district contend that the students had been under supervision because they were not in a traditional classroom. Three classrooms, separated by movable dividers, and two teachers were in that three-classroom area when Casey and the other children were playing the game, the officials said.

The settlement does not include any admission of wrongdoing by the school district or Mr. Dorken. The district’s insurance company will pay the settlement on behalf of both defendants.

The $2 million settlement is “unusually high” for a wrongful-death action involving a child, said Julie K. Underwood, the general counsel of the National School Boards Association in Alexandria, Va.

Ms. Underwood said that municipal agencies including school districts often have limited liability under state laws because of sovereign immunity that would either cap damage awards or block lawsuits.

Thomas DiCianni, the lawyer for the Glenview elementary district, said the plaintiffs would not have been able to prove a conscious disregard of a known danger by school authorities. The students suggested that the game be played, he said, and at that time, no one was aware of the possible hazards.

“Strictly on the law and the facts on paper, we thought we [could] have won,” he said in an interview last week. “But trying to overcome the emotional impact of this tragedy was very difficult.”

Casey would have graduated from high school this month.

A Campaign Against Game

Mr. Murphy said Casey’s parents are committed to publicizing the dangers of playing Chubby Bunny.

“They didn’t want to crucify the teacher,” Mr. Murphy said. “They want to try to prevent this from happening at any other school.”

An Internet search found that Chubby Bunny is played across the country. One Web site shows photos of students at a Wisconsin high school stuffing marshmallows into their mouths. Northern State University, in Aberdeen, S.D., cites Chubby Bunny on its Web site as an “ever popular” game played during new-student orientation.

Brett Clark, a spokesman for the Glenview elementary district, said when Casey died, district officials sent letters to other Illinois school systems warning them about the game and got in touch with several Web sites that promoted it.

“As terrible of an accident that this was, if there’s any sort of benefit from this, [it’s that], hopefully, no one ever plays this game again,” Mr. Clark said.

Meanwhile, Mr. Dorken’s involvement in the incident at Hoffman Elementary has caused some concern among parents in Winnetka, Ill., where he was recently hired as an elementary school principal. While the superintendent of Winnetka Public Schools District No. 36 was aware that Mr. Dorken was being sued, members of the school board and principal-search committee apparently were not, the Chicago Tribune reported. A meeting with Mr. Dorken and parents in the community was to be held this week.

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