Tracy Stopford, Individually, and as Administrator of the Estate of Jordan Preavy and Sean Preavy v. Milton Town School District and Milton Town School Board
202 A.3d 973
Vt.2018Background
- Jordan Preavy, a Milton High School student, was forcibly assaulted by teammates with a broomstick at a team event in August 2011; he did not report it to the school or his parents and later died by suicide in August 2012. Criminal convictions for the assault occurred after an investigation in 2013 when the school first learned of the incident.
- Prior to Jordan’s enrollment, school officials had addressed a nonphysical ‘‘no homo’’ game among students in 2009, instituted disciplinary measures, and reported no further incidents through the 2010 season; the school had no contemporaneous reports of physical hazing by the football team before 2011.
- Plaintiffs (Jordan’s parents and his estate) sued the school district and boards for negligence and VPAA violations (VPAA claim not appealed); loss-of-consortium claims and claims against individual administrators were dismissed below as time-barred and not appealed.
- On summary judgment the trial court found: schools owe a duty of ordinary care under 16 V.S.A. § 834; Milton had no specific notice of physical harassment by the perpetrators before the 2011 assault; the assault was not foreseeable; and summary judgment for defendants was proper. The court also sanctioned plaintiffs’ counsel for ex parte contact with defendants’ expert.
- The Supreme Court majority affirmed: § 834 establishes only an ordinary-duty standard for schools; generalized knowledge of hazing or the earlier nonphysical conduct did not make this specific assault foreseeable; summary judgment was appropriate; sanctions were upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable duty of care | Plaintiffs: schools should be held to a heightened or more specific standard (esp. for hazing prevention); expert testimony and statutes support a more exacting standard. | Defendants: Vermont law (16 V.S.A. § 834) imposes only a duty of ordinary care on schools. | Court: § 834 sets ordinary care as the governing duty; no heightened duty. |
| Foreseeability of the assault | Plaintiffs: school’s prior knowledge of ‘‘no homo’’ game and nationwide hazing patterns made assault foreseeable; factual disputes should go to jury. | Defendants: school had no specific or timely notice of physical harassment by these students; generalized knowledge is insufficient. | Court: assault was not reasonably foreseeable from school’s knowledge; generalized or prior nonphysical conduct did not trigger duty. Summary judgment proper. |
| Role of expert testimony on standard of care | Plaintiffs: experts on hazing established a disputed standard of care and show the school failed to meet ordinary-care obligations—creates jury question. | Defendants: experts’ generalized national/hazing evidence cannot substitute for specific notice of similar prior acts; admissibility/weight insufficient to defeat summary judgment. | Court: expert evidence about generalized hazing does not overcome lack of specific notice; it does not create a triable issue on foreseeability. |
| Sanctions for ex parte contact with opposing expert | Plaintiffs: counsel’s contact was to arrange deposition; sanction inappropriate or excessive. | Defendants: counsel’s ex parte communication violated discovery rules and caused prejudice and fees. | Court: trial court did not abuse discretion; counsel acted in bad faith by using substantive ex parte communication in motion to strike and must reimburse defendants’ costs. |
Key Cases Cited
- Edson v. Barre Supervisory Union No. 61, 182 Vt. 157 (Vt. 2007) (schools owe ordinary-care duty under § 834; foreseeability required to trigger duty)
- Fazzolari v. Portland Sch. Dist., 734 P.2d 1326 (Or. 1987) (generalized risk evidence may support foreseeability when accompanied by specific prior similar acts)
- Mirand v. City of New York, 637 N.E.2d 263 (N.Y. 1994) (actual or constructive notice of prior similar conduct generally required to hold school liable for student-on-student misconduct)
- Baisley v. Missisquoi Cemetery Ass’n, 167 Vt. 473 (Vt. 1998) (duty of reasonable person requires considering children’s abilities and circumstances)
- Estate of Sumner v. Dep’t of Soc. & Rehab. Servs., 162 Vt. 628 (Vt. 1994) (liability for third-party abuse may arise when defendant has special knowledge or duty that makes harm foreseeable)