North Carolina Lawyers Weekly
The North Carolina Court of Appeals has put the brakes on a lawsuit that was filed against a school district on behalf of a vulnerable special needs student who was sexually assaulted on an outsourced vehicle that transported her to school.
Dearman
The court affirmed on Sept. 7 the dismissal of the student’s claims under Section 1983 of the Civil Rights Act and summary judgment with respect to her Title IX claim.
“Lauren,” a 20-year-old special needs student who attended West Stokes High School, is severely disabled with an IQ of 41 and the functional capacity of a first grade student. For many years, she rode a school bus that was designated for special needs students with an assigned bus monitor.
In 2013, the Stokes County Board of Education elected to contract with Yadkin Valley Economic Development District, Inc. (YVEDDI) to provide transportation for some of its special needs students. Lauren began riding a YVEDDI van that did not have a safety monitor.
On two separate days in December 2015, while transporting Lauren and other students, YVEDDI driver Robert King stopped the van multiple times and sexually assaulted Lauren a total of 21 times. A concerned resident reported King’s driving to YVEDDI. The company discovered King’s actions when it reviewed the video footage on the van, reported him to law enforcement, and terminated his contract.
YVEDDI didn’t notify the board of the assaults, King’s arrest, or his termination. Instead, school officials first learned about the sexual assaults from Lauren’s mother after she was contacted by law enforcement after King’s arrest.
On Lauren’s behalf, her mother sued the board and individual board members, asserting claims for negligence, negligence per se, negligent infliction of emotional distress, Section 1983 claims, Title IX damages, and negligent hiring, training, supervision and retention.
Two Stokes County superior court judges granted the defendants’ motion to dismiss the Section 1983 claims and their motion for summary disposition on the remaining claims. In an opinion written by Judge April Wood, the appeals court affirmed both rulings.
“Plaintiffs’ Title IX claim fails because no school employee or Board member had actual knowledge of King’s sexual abuse of Lauren until after he had been arrested and terminated,” Wood wrote. “The undisputed evidence shows school officials learned that King had abused Lauren only after the sheriff notified [her mother], who in turn, contacted the school principal. In the absence of any evidence that a school official or Board member with authority to remedy alleged discrimination had actual knowledge of King’s abuse of Lauren, there is no genuine issue of material fact as to Plaintiffs’ Title IX claim against the Board.”
Insufficient allegations
Sanders
Beginning with the motion to dismiss the Section 1983 claims, Wood found the defendants didn’t violate Lauren’s constitutional right to equal protection because the complaint was devoid of any factual allegations sufficient to establish that Lauren had been treated differently from similarly situated male students, thus failing to state the first element of an equal protection violation based on her gender.
Disabled individuals are not a suspect or quasi-suspect class entitled to special protection under the Equal Protection Clause, Wood added, relying on caselaw from the U.S. Supreme Court.
As for Lauren’s substantive due process claim, Wood wrote that to establish Section 1983 liability based on a state-created danger theory, a plaintiff must show that the state actor created or increased the risk of private danger and did so directly through affirmative acts—not merely through inaction or omission.
The complaint “does not contain factual allegations that would establish conduct by the Board that was so intentional or affirmative that it shocks the conscience,” Wood wrote.
Similarly, the failure to train allegations were insufficient to survive.
“Plaintiffs do not allege there were prior incidents of this kind, nor are there any factual allegations showing that the Board or school officials demonstrated a deliberate indifference that was likely to lead to a contracted bus driver’s sexual abuse of a student,” Wood wrote.
While the failure to train municipal personnel may rise to the level of an unconstitutional custom or policy where there is a history of widespread abuse, the complaint only contained “general contentions” of the failure to provide training or supervision, Wood said. “Allegations of mere negligence with regard to training are insufficient to state a claim for municipal liability.”
The failure to supervise claim met the same fate.
“King is the only individual Plaintiffs allege to have abused Lauren,” Wood wrote. “King was not a subordinate of the Board. No school employee is alleged to have committed acts upon Lauren that violated her substantive due process rights to bodily integrity and to be free from sexual abuse. Thus, a claim that the Board failed to properly train or supervise its employees or subordinates fails.”
Board delegated to contractor
Turning to the negligence and Title IX claims, Wood affirmed the trial court’s grant of summary judgment, despite sympathizing with the plaintiffs for the “irreparable harm” Lauren suffered.
The board had delegated its duty to safely transport Stokes County students pursuant to N.C. Gen. Stat § 115C-253. Although Wood recognized that the state owes a duty of care “relative to the [victim’s] maturity,” the board didn’t retain the right to control the manner in which YVEDDI would transport students such as Lauren, and the court declined to extend tort liability where the harm occurred to a student not in the school’s physical custody.
“Absent guidance by our legislature, we are obliged to hold the trial court did not err in granting summary judgment,” Wood wrote. “To hold otherwise would be to ignore the independent contractor rule, that states when an employer properly delegates a duty pursuant to a statutory authority, its duty ceases. Because we are bound by our precedent, we hold the trial court did not err in granting summary judgment.”
Finally, Wood affirmed summary judgment in favor of the defendants on the Title IX claim.
To survive a summary judgment motion, a Title IX plaintiff must present evidence from which a reasonable jury could conclude the school’s deliberate indifference to the initial discrimination subjected the plaintiff to further discrimination—a “rigorous and hard to meet” standard, Wood said.
But no school employee or board member had actual knowledge of King’s sexual abuse of Lauren until after he had been arrested and terminated, she said. The undisputed evidence showed that school officials learned about the abuse only when Lauren’s mother informed the school principal, leaving the plaintiffs unable to meet the standard for a Title IX claim.
Two members of the three-judge panel filed concurring opinions.
Judge Richard Dietz took the position that felony sexual assault of a vulnerable special needs student is not always foreseeable to school officials as a matter of law, while Judge John Arrowood wrote separately to express his concern that the statute authorizing delegation of the duty to transport public school students has effectively permitted boards of education to contract out of the heightened standard of care that the court has previously held them to.
Kirk Sanders and Joshua Dearman of Hendrick Bryant Nerhood Sanders & Otis in Winston-Salem, who represented the plaintiffs, plan on filing a petition for discretionary review to the Supreme Court.
“This decision has terrible policy ramifications,” Sanders said. “From a broad policy position, if this case stands, then it is going to allow every school system across the state to abdicate their duties by outsourcing to independent contractors, including the duties owed to our most vulnerable students.”
Raleigh attorney Deborah Stagner of Tharrington Smith in Raleigh, who represented the defendants, didn’t respond to a request for comment.
The 33-page decision is Osborne v. Yadkin Valley Economic Development District, Inc. (Lawyers Weekly No. 011–168–21). The full text of the opinion is available online at nclawyersweekly.com.
