AMARILLO, Texas (KAMR/KCIT) — A parent and grandmother of 11-year-old Emerson Cole, a student from Lorenzo de Zavala Middle School who died after an allergic reaction on campus in January 2023, has filed a lawsuit against the Amarillo Independent School District in the 108th District Court in Potter County for alleged negligence.
According to the lawsuit, Cole was diagnosed with a severe dairy allergy, and as a part of the allergy treatment Cole had a 504 Action Plan on file with the Amarillo Independent School District that detailed the procedures that school employees should take in the event of an allergic reaction. The lawsuit states that according to the Action Plan, if Cole began having an allergic reaction, school personnel were to administer epinephrine, call emergency medical services, and notify Cole’s parents. The lawsuit also states that Cole’s condition qualified her as an individual with a disability under the Americans with Disabilities Act.
The lawsuit details the timeline of events that led to Cole’s death on Jan. 19, 2023, beginning with the initial allergic reaction on campus on Jan. 17.
Cole began experiencing an allergic reaction after eating lunch in the cafeteria and went to the nurse’s office, according to the lawsuit, and when Cole arrived, the school nurse was not there. The lawsuit details a school official called Chelsea Acosta, the mother of Cole and plaintiff in the lawsuit, and asked if they would give Cole a Benadryl to help with the allergic reaction, to which Acosta agreed. However, according to the lawsuit, Cole then allegedly became sick and threw up the Benadryl.
The lawsuit then said that as this event was happening Carole Kroger, grandmother of Cole and plaintiff in the lawsuit, arrived at the school office where she was allegedly told the office was calling 911. Kroger allegedly went back to her car to call the Amarillo Fire Department, then went back into the school where Cole was struggling with a breathing treatment and collapsed.
According to the lawsuit, Kroger placed Cole on the floor and administered CPR before EMS personnel arrived at approximately 12:34 p.m. and began treating Cole for cardiac/respiratory arrest and prepping her for transport to a local hospital. The lawsuit details that Cole was pronounced dead two days later on Jan. 19.
Acosta and Kroger are both being represented by Attorney Kevin Isern and MyHighPlains.com had the chance to speak about the lawsuit with Isern.
“We’re very proud to represent the family of Emerson Kate Cole,” Isern said. “We just know there was a long delay and she has a 504 plan. That’s because she has allergies to food and other things. The protocol was once you have a reaction, you administer an EpiPen which the school had. There’s been a lot of rumors in this case about that there was an EpiPen at the school and it was locked up and nobody had the key. That’s not correct. There was an EpiPen there. They just didn’t administer it.”
“They (Emergency Medical Services) did administer an EpiPen once they got there,” Isern added. “But the 911 call was over 25 minutes after she had had the initial reaction to the food. Unfortunately, it’s a terrible result but Emerson passed away.”
“My understanding is that the night before she was staying at her dad’s house, and they made pizzas, and I assume boxed them or put them in their lunch bags, and they just took the wrong one,” Isern said. “But the important part of this is once you have a reaction, that’s when it becomes the school district’s issue. And once she had a reaction, call 911, administer the EpiPen. And we wouldn’t be here, we wouldn’t be talking about this [if that had happened]. And this little girl would be getting ready to go into the ready to go into the seventh grade now. But unfortunately, she can’t.”
Acosta and Kroger claim in the lawsuit that Amarillo ISD “failed to implement policies, procedures, and practices required to keep Cole safe in the manner and particulars noted herein.” Specifically, according to the lawsuit, Acosta seeks damages and compensation as the mother of Cole for the injuries discussed in the lawsuit and both Acosta and Kroger bring this action under the Americans with Disabilities Act.
“They failed to administer medication that they knew she needed and was aware that she needed they also violated the Americans with Disabilities Act because of her (Cole’s) allergies, is considered to be covered under the Americans with Disability Act or the ADA,” Isern said. “And so what we want to make sure is in the family wants to make sure is that there’s nurses at each [campus]… [The district will not continue] dividing up nurses between campuses, and that there’s nurses always there to provide for the students that need help. And also to make sure that every school knows how to administer an EpiPen, knows how to administer insulin, and knows how to administer epileptic medication. Lots of kids have these issues, and we put our trust in the schools, and they need to be trained properly to deal with this.”
The lawsuit details the causes of action claiming Amarillo ISD was negligent in “failing to exercise the ordinary care of a reasonable and prudent school district under the same or similar circ*mstances by” allegedly:
- Failing to follow the 504 Action Plan for Cole;
- Failing to administer epinephrine to Cole when she was having an allergic reaction;
- Failing to adequately monitor Cole during her allergic reaction;
- Failing to promulgate and implement adequate policies and procedures to prevent occurrences such as the one made the basis of this lawsuit;
- Failing to establish policies and procedures to adequately administer medications to students who have a disability and/or have been diagnosed with a medical condition that requires the administration of medication;
- Failing to establish proper training programs for its school employees to prevent such occurrences such as the one made the basis of this lawsuit;
- Failing to properly monitor and react to students having an allergic reaction during school hours; and
- Failing to have adequate staff on-site during a medical emergency like the one made the basis of this lawsuit.
The lawsuit also details that Amarillo ISD is deemed a “public entity” that receives federal financial assistance under the ADA and “refused to reasonably accommodate” Cole’s disability and modify their services, Amarillo ISD allegedly violated Title II of the ADA by “not having a safe and non-hostile educational environment.” According to ADA.gov, Title II of the ADA requires state/local governments to give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities.
According to the lawsuit, Cole was a victim of discrimination based upon the disability of her allergies by the “acts and omissions of AISD.” Both Acosta and Kroger seek emotional damages, wrongful death damages, survival damages, Americans With Disabilities Act damages, and seeking for Amarillo ISD to cover attorney fees. Kroger specifically seeks bystander damages for her participation in the treatment of Cole which Kroger suffered damages due to the direct “emotional impact.”
The lawsuit requests a jury to examine the cause of actions and Isern states they always want a jury to decide how much money should be awarded to the family however, the lawsuit has been filed it is so it will never happen again
“We always trust what a jury says, we always want the jury to decide how much money should be awarded to this family,” Isern said. “I cannot imagine asking for a certain amount of money only because there’s the loss of a child. There’s no amount of money that can fix this. But we can make sure that it doesn’t happen again.”
“I just really hope that AISD learns their lesson gives their teachers, their nurses, their administrators, the proper training, and they take action… Like I said before we send our kids to school, we trust the school is going to take care of them. And AISD is just not doing that right now. And they need to take better action,” Isern said.
MyHighPlains.com has reached out for comment from Amarillo Independent School District but we have yet to receive a response.
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