Boy Was Scalded as Punishment, Suit Says : Courts: Workers at a county-run school allegedly immersed a 17-year-old retarded boy in water heated to about 150 degrees, resulting in second- and third-degree burns over his body.

SANTA ANA —  A retarded 17-year-old boy was nearly killed at a county-run school in Placentia after staffers immersed him in scalding water “to cause injury and punishment” for defecating in his pants, according to a lawsuit filed by the youth’s mother.

The suit charges that Robert Herrell was immersed in bath water “heated to approximately 150 degrees” and suffered “second- and third-degree burns over 35% to 40% of his body” while attending George Key Special Center last summer.

Sgt. Russell Rice, spokesman for the Placentia Police Department, said police had extensively investigated the incident last summer. He said the district attorney’s office decided not to file charges because the investigation found “no criminal intent.” Rice confirmed that Herrell had been severely scalded.

Deputy Dist. Atty. Kathleen Harper, who reviewed the case last summer, said Tuesday: “We just felt we couldn’t prove criminal intent. There was no evidence that this was done purposely. There may have been negligence, but I was not convinced that this arose to the level of criminal negligence.”

Ronald D. Wenkart, senior attorney for the County Department of Education, said Tuesday that he has not received a copy of the suit and has no comment. Wenkart also said no other employees or officials of the department or the school for the handicapped would comment on the charges.

The civil suit was filed Jan. 16 in Orange County Superior Court by Herrell’s mother, Judy L. Bates. It seeks unspecified monetary damage as well as payment of her son’s medical bills. The suit states that Herrell was discovered to be developmentally disabled when he was about 1 year old. He had the mental capacity “of an infant child between the age of 6 months and 18 months” at the time of the incident in the school, the suit says. Herrell’s handicapped condition has worsened because of the scalding and he now can no longer live at home with his mother, the suit says.

According to the suit, the incident took place June 30, 1989, at the George Key Special Center, 710 E. Golden Ave. The center is one of the special schools for mentally and physically handicapped children that is operated by the Orange County Department of Education. The department, which is headed by Supt. Robert Peterson, is an independent county agency. Peterson’s office is named as one of the defendants.

The suit says Herrell was supposed to be under the supervision of a teacher identified as Carol Cornell. But while Cornell was at lunch that day, two teacher’s aides, Donna Pullen and Sabrina Murphy, took over Herrell’s care.

“About this time, Robert Herrell had defecated upon himself and in some manner or way wiped the debris upon his body,” the suit says. “Donna Pullen and Sabrina Murphy then subjected Robert Herrell in the bath water heated to approximately 150 degrees, all the while they protected themselves by wearing gloves or otherwise not touching the scalding water.

“Because Robert Herrell does not speak and is otherwise severely developmentally disabled, he sat motionless in the scalding water while his skin ruptured and burned. Burn patterns on his body indicate he slumped to one side and was positioned in the tub facing a wall.

Cornell arrived shortly afterward and called paramedics, the suit says. Herrell was taken to the burn ward at UCI Medical Center in Orange, “where he remained in critical condition for many weeks,” according to the suit.

The suit charges that “the conduct of the defendants . . . was intended . . . to cause injury and punishment to Robert Herrell and subject him to cruel and unjust physical harm.”

According to the lawsuit, Herrell almost died at UCI Medical Center as a result of his scalding. Secondary infections, including pneumonia, set in, the suit says, and “in order to preserve his life, an emergency tracheotomy was performed.” Herrell’s right lung collapsed “and an emergency surgery was performed to reinflate the lung,” the suit says.

The suit also says that Herrell, as a result of the injury, “forgot many of his learned skills, such as self-feeding and swallowing. Nor could Robert Herrell walk after being burned, and he now fears any bathing and has a distrust of people.”

The suit charges that Herrell’s mother also suffered emotional distress because of the incident. The suit said damages being sought on behalf of Herrell are for assault and battery, civil conspiracy, negligence, vicarious liability, and negligent and intentional infliction of emotional distress.

James L. Waltz, a Laguna Hills attorney, is handling the case for Herrell and his mother. Waltz on Tuesday said that the mother is “in a very bad emotional state” and could not comment on the case.

The suit names as defendants: the George Key Special Center; employees of the center identified as Pullen, Murphy, Cornell and Debbie Swerdlow; the Orange County Department of Education, and the Placentia Unified School District.

Placentia Unified Assistant Supt. Tim Van Eck said Tuesday that his district owns the building in which George Key Special Center is housed. Van Eck said that although Placentia Unified uses half of the George Key Special Center for its own school for handicapped students, the other half is operated by the county Department of Education. Herrell was a student in the portion of the center operated by the county, Van Eck said.