Curry lawsuit: Teacher seeks dismissal of punitive damages

A San Ramon Valley High School physical education teacher is seeking to have punitive damages dismissed in a lawsuit filed by the family of 15-year-old Ben Curry, who drowned unnoticed during class in the school pool in May 2018.

Documents filed with the Contra Costa County Superior Court earlier this month include the first public statement made by Aaron Becker, the San Ramon Valley High School teacher on duty at the time of the drowning.

In November 2018, Ben’s parents, Karen and Thomas Curry, sued the San Ramon Valley Unified School District, as well as Becker.

The civil suit alleges that not only did the SRVUSD fail to install proper safety policies to prevent Curry’s death, but that the boy’s physical education teacher, Becker, failed to properly supervise the class, was seen looking down at his cellphone instead of watching the kids, lacked valid lifeguard certification, and “took no action while Benjamin Curry became exhausted during class and slipped under the water. He then recessed the class and left the pool area without accounting for the safety of the children under his supervision, including Benjamin Curry.”

Surveillance video footage reportedly showed the 57 students in Ben’s fourth-period physical education class treading water for close to four minutes, while Becker was looking at this phone, which the teacher said occurred because he was timing the students with a Smartwatch App and put his phone away seconds before Ben “slipped under water.”

On Oct. 4, Becker’s attorneys were granted an order to seal the video from the public.

Becker’s statement

Becker, who remains employed as a teacher and varsity football head coach at San Ramon Valley High School, has since issued a declaration to the court stating his recollection of the day Curry died, in support of his attorney’s motion for a summary judgment to dismiss punitive damages.

In addition to his own accounting of events, Becker’s legal representation — Jason M. Sherman of the Sacramento-based Johnson, Schachter and Lewis — submitted a memorandum to the court chronicling events and listing the reasons for the requested dismissal.

“The undisputed evidence conclusively establishes that Mr. Becker never acted with any intent to injure, nor did he engage in any ‘despicable’ conduct constituting a willful and deliberate failure to avoid any dangerous consequences,” Sherman wrote.

Chronicling the series of events that led up to Curry’s death, according to Sherman, on the first day of swim class in May 2018, Becker, who had been teaching swim class to freshmen for 13 years, conducted a test of each students swimming abilities and found that Curry’s skills were adequate to continue with the class.

“Ben Curry participated in the swim test, and my opinion and assessment from this test was that Ben Curry was a capable swimmer,” Becker said in his declaration.

On the day of Curry’s death, May 8, 2018, Sherman said after participating in their strokes, the class began treading water, an activity Becker demonstrated for the class while he was on land.

While the class began to tread water, Becker, who was positioned on the diving board viewing the students, observed multiple students hanging onto the lane line ropes engaging in what he called “horseplay.”

Becker then responded by advising the students he would add 30 seconds to the time students were treading water.

Previous reports had said that Becker could be seen glancing at his phone during the class, which Sherman did acknowledge, but added that Becker was using his phone to track the amount of time students were treading water.

Curry slipping underwater and drowning happened in a matter of seconds according to Sherman, who went on to document the last few seconds before Curry went under.

According to Sherman, video evidence shows that at 12:32:19 p.m. Becker put his phone in his pocket and looked straight ahead toward the pool to dismiss class, during which time Curry could still be seen treading water next to another student.

Four seconds after Becker put his phone away, and one second after Becker signaled his class to get out of the pool, Sherman wrote that “Ben Curry quietly slipped under the water unnoticed by approximately 55 students and Mr. Becker.”

Sherman further said that “it appears Ben Curry was not visible due to other students swimming over where Ben had slipped under, the movement of the water, and the refraction of light,”

“Based on the video which depicts the scene from a wider angle, I believe my view of Ben Curry was obscured by the black tile markings on the bottom of the pool and two lane line ropes which were affixed to the edge of the pool,” Becker added in his written declaration. “At no time during the entire treading water activity did I observe Ben Curry struggling or displaying any difficulties, nor did I hear of any such thing.”

Sherman further added that Becker was tasked by the district with monitoring a class that consisted of approximately 57 students alone, without help from designated lifeguards or adults.

Addressing reports that Curry had left his belongings on the bleachers next to the pool, which some have said should have tipped Becker off to Curry’s disappearance, Becker said that it is common for water sports teams to leave items beside the pool and that he did not notice them anyway. Two fellow PE teachers concurred, declaring under oath in support of Becker’s motion.

“I absolutely never saw these items and ignored,” he said.

“We are confident that the motion will be denied,” said the Curry family’s attorney Andrew Schwartz of Walnut Creek-based firm Casper, Meadows, Schwartz & Cook. “We received the motion last week and we are in the process of preparing our response that is not due until December for the hearing in January of next year.”

Video sealed

The order to seal the video from the public issued Oct. 4 states the pool surveillance video is an “educational record” under the Family Educational Rights and Privacy Act (FERPA).

Contra Costa Superior Court Judge Edward G. Weil ruled the video, which captured images from approximately two hours before and two hours after the drowning, the 1:13-second enhanced video created by the family’s attorney and screenshots of the video would be sealed from the public because it “contains identifiable images of students during class, as well as before, during and after an injury to a student.” The injured student is Curry.

“My clients are disappointed that the court has ruled to grant Aaron Becker’s request to seal the video of their son’s drowning,” Schwartz said. “I don’t understand the need to keep this video from the public. I’ve seen the video on numerous occasions and it accurately depicts the events surrounding Ben’s death.”

According to court filings, Curry can be seen treading water to the left of the diving board, where Becker was standing. Becker put his phone away, blew a whistle and signaled for the students to get out of the pool. Curry is seen slipping under the water four seconds after Becker put his cell phone into his pocket, according to the clock on the video. The body was discovered over an hour later.

“The law relied upon in Aaron Becker’s request was created to protect students who were injured during school activities and Ben’s parents have made it clear from the outset that they want to the public know exactly what happened to their son during Aaron Becker’s swim class at San Ramon Valley High School,” Schwartz said. “We are considering our options as to whether or not to ask the court to reconsider its ruling regarding the sealing of the video.”

Sherman did not respond to a request for comment Monday.

While the video is being kept from the public, Becker’s attorney plans to use it as evidence at Becker’s Jan. 2 summary judgment hearing. The attorneys also stated the video being publicly filed or lodged with the court will also be an issue at the trial, which is scheduled for Feb. 3.

The school district is being represented by Davis & Young of San Jose. When asked about the status of the lawsuit, SRVUSD spokeswoman Elizabeth Graswich said, “We are unable to comment on questions related to pending litigation.”

Editor’s note: Several public records requests by the Pleasanton Weekly to obtain the pool surveillance video, Contra Costa County Sheriff’s deputies’ body camera video and documents pertaining to the death of Ben Curry have been denied by the San Ramon Valley Unified School District and the Contra Costa County Sheriff’s Office.