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updated: 9/11/2012 2:44 PM

Aurora District 129 fighting lawsuit from family of burned student

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Attorneys for West Aurora School District 129, which is being sued by parents of a special-needs prekindergarten student who was scalded by hot cup of tea, say the teacher and district should not be held liable for injuries, according to court records.

Horacio Carmona and Cristina Vivaldo sued the district earlier this year, arguing their then 3-year-old son sustained third-degree burns on Nov. 10, 2011, after a teacher at Hope D. Wall Elementary School brought a hot cup a tea into a classroom and set it on a table.

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According to the suit, the toddler, who is mentally challenged, presumed autistic and without the ability to speak, knocked over the cup and was burned on his face, neck and torso.

School district attorney Melissa Mitchell argued in court papers that the district and teacher are immune from liability. Mitchell acknowledged the teacher was in the room, but denies that the teacher "ignored an obvious danger."

Mitchell argued that the teacher was immune from liability under the Tort Immunity Act, part of which states a teacher is immune from liability if exercising policy and discretion, according to court records.

"This defendant is not liable for any alleged injury resulting from her act or omission in determining policy when acting in the exercise of such discretion even if abused, including the determination of policy and discretion as to when and under what circumstances hot beverages are permitted in classrooms, how children are supervised and the appropriate timing and manner of obtaining medical care for her students," Mitchell wrote as an affirmative defense.

The lawsuit also accuses the district of failing to take the boy, now 4, to a hospital emergency room until 11:23 a.m. that day after the burn occurred at about 10:30 a.m.

The two sides are due in court again Nov. 1 before Kane County Judge Judith Brawka. The parents of the boy have demanded a jury trial and seek more than $50,000 in damages.

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