*1 NELSON, Individually, and Brooke Nelson, next friend of
Brooke F.B., Minor, Appellant A TURNER; Fayette County Public Diane County Schools; Fayette Ed Board of ucation; and School Boards Trust, Appellees. Insurance 2007-CA-000489-MR. No. Appeals Kentucky. Court of June 2008. *2 Golden, Davis, Shaye
J. Dale Michael T. ICY, Page, J. Lexington, Appellant. for Fenzel, Collins, Mark Dana L. L. Kevin Louisville, Chlarson, KY, for Appellees Fayette County Education, Fay- Board of Schools, County ette and Diane Turner. Guy Colson, Miller, Barry R. Christina Vessels, KY, Lexington, Appellee Ken- tucky School Board Insurance Trust. COMBS, Judge; Before Chief MOORE, Judges. CLAYTON and OPINION CLAYTON, Judge. Nelson, individually,
Brooke and as next F.B., daughter, friend of her minor appeals summary order Fayette Circuit Court her dismissing personal injury Fay- claims for against the Schools;1 County ette Public County Education; Board of Turner Diane (“Turner”), individually, capaci- ty teacher; as a Boards Trust School Insurance (“KSBIT”). Tur- Nelson’s ner and the Board of Education out arise alleged negligent supervision Fayette County any 1. The allegation respect Board Education include of error as- Fayette County serts its brief that the any Pub- regarding Fayette County determination recognized legal Schools entity lic is not a Schools, Public we have not addressed proper appellee. and is not a defendant issue. appeal arguments Since Nelson’s do not C.Y. also admonished F.B.; one another. She the failure of touching someone’s bottom assault under standards established sexual children keep In an statute; wrong. Nel- effort outrage. the tort of *3 them seats assigned specific of Turner apart, out KSBIT arise son’s the rest- attending faith on and forbade them of several instances bad charges time. investigate at the same as well as its refusal to room part, its to communicate with F.B.’s claims and 21, period After the lunch November counsel, attempt or to time- or her Nelson that had been F.B. told Turner C.Y. having dispute. to resolve the After ly during read- my in the classroom “up butt” the oral and writ- reviewed considered upset. not appear F.B. did ing group, but counsel, in arguments of we affirm ten the Turner still unsure of what While part. and vacate and remand in part involved, immediately ques- she contact C.Y., had admitted that she to tran- tioned who The record before us limited in F.B. Turner left the children portions depositions, of sworn touched scripts of to lo- attempted care and under- her assistant’s sequence which reveal the events for advice. In cate a school аdministrator lying complaint. November Turner principal, a kin- to find the school five-year-old registered F.B. was Unable eventually at a on with her instructional in class carried dergarten student Turner’s the class- not return to elementary Coun- duties. C.Y. did day. year, that ty. On November 16 that same room sexually class- F.B. was assaulted in the evening during that Nelson testified during regular room school hours 21st, reported of November F.B. hours classmate, C.Y., en- female who was also aunt, C.Y. Bridget, that her Nelson’s sister rolled Turner’s class. F.B. described into finger genitals. her F.B.’s had stuck days incident to mother after her two F.B. on the incident with Nelson discussed telephoned it had Nelson then occurred. morning of No- way to school on that F.B. had com- reported to meet 22nd. Nelson was unable vember “put finger up that had plained C.Y. her Collins, tele- Freída but principal, with the my at butt” school. related her afternoon. Collins phoned that Turner, nothing knew about According Nelson described to Nelson that she ad- that would F.B. had that but indicated she complained situation where situation chil- butt,” immediately by having both “up had been her and she dress it C.Y. Fol- office for a talk. report that from this dren to her testified she understood conference, reported sexually lowing had as- Collins conversation C.Y. she Nel- had admitted that F.B. Turner did feel that Nelson C.Y. saulted accidentally had touched F.B. between greatly upset son was as she related F.B.; however, had they denied that C.Y. legs, she but incident described finger up her F.B.’s bottom. Collins separate put Nelson that she would assured that she contin- indicated to Nelson would children. that the Concluding investigation. ue her con- telephone Turner’s conversation accidents, did not Collins incidents were impression for her own firmed Nelson the authorities. report the matter to fre- together quite C.Y. played F.B. and 22nd school end the November morning at At the quently school. On had 21st, mother that C.Y. day, F.B. told her Monday, November Turner advised table, her into a had rubbed teaching pushed that F.B. and CY. her assistant her and had touched longer pinched nipples, no allowed be close would vagina anus and Fayette County while were in Turner and the —all (“Board”). together. During the classroom the eve- Board of Education Nelson al- ning 22nd, of November took F.B. leged Nelson that Turner had failed to exercise University ordinary supervise Medical care to children physical Center examination. Doc- her classroom and to to enforce- there tors noted “some irritation of small ment officials the sexual assault perpetrat- vagina” advised Nelson she ed by Kentucky C.Y. Re- (“KRS”) need to speak would to a social worker vised Statutes 620.030. Under about events described F.B. Uni- principles agency, common law *4 versity personnel medical the in- the reported alleged that Board was lia- vicariously to police. damages cident F.B. return to by did not the ble for caused Turner’s failure Schools, Fayette County Public and an F.B. protect Finally, to from harm. Nel- investigation internal followed. son claimed Turner’s inappropriate response the situation out- to amounted to 3, 2006, On March Nelson filed an action rageous sought compensato- conduct. She against KSBIT. In her complaint, ry punitive damages along and with attor- alleged that KSBIT had violated several fees, neys’ expenses. costs and portions of the Kentucky Insurance Code (“KIC”), by engaging in claims set- unfair Each of the named defendants answered practices; failing timely tlement to re- allega- and denied Nelson’s substantive claimant; failing addition, to spond timely to tions. In Turner and the Board complete matter; an investigation they of contended were entitled to acts; engaging unfair or fail- deceptive protections governmental qualified of and to ing acknowledge promptly immunity. and to act official upon the claim- regarding communications 19, 2007, January following period On a ant; failing to adopt implement and to discovery, of Turner and the extensive for prompt investigation standards of a summary judg- Board filed motion for claims; claim; refusing pay to supporting ment. In the memorandum failing provide explanation a reasonable motion, argued Turner and the Board of the basis for the denial the claim or of as a judgment were entitled to lack of an offer of a settle- comрromise matter The Board of law. contended ment. Nelson also a claim asserted it it is could not sued in tort since intentional infliction of emotional distress governmental immunity and by shielded sought KSBIT. Nelson both com- vicariously not liable that it could be held pensatory punitive damages. alleged protect failure F.B. for Turner’s
Following hearing upon firmly legal principles. a KSBIT’s mo- under established claims, seeking tion dismissal of the supervision that her contended court trial ruled thаt the action would be good of F.B. undertaken in faith without prejudice. dismissed Before the as a part discretionary of her functions written court’s order was entered primary argued school teacher. She clerk, however, a Nelson filed motion to circumstances, under these she was enti- amend the complaint. In an order entered official lia- qualified tled to May permitted the trial court bility. argued Turner also that she was complaint. Nelson to file an amended provisions not of KRS In her amended Nelson re- make a complaint, 620.030 to any allegations against agen- newed her KSBIT and assault local law enforcement allegations cy. any arguable included new and separate Regardless applicabil- also statute, discretionary in na- she it did ministerial rather than ity of the contended that ture. action enforce- private right not create a argued Finally, Turner able Nelson. the nature of shall first address We prima could a
that Nelson not establish Nelson con- Turner’s classroom duties. allegation out- support case to obligation supervise tends that Turner’s facie mo- rageous opposed conduct. Nelson protect them from students and summary judgment tion for submitted her po- functions of harm were ministerial support of her her own memorandum consequence, Turner would As sition. position. enjoy immunity but would be qualified upon finding negli- damages hable for 6, 2007, February KSBIT filed On to thеse claims. gence respect with action it. motion to dismiss the KSBIT reasoned that since Turner and It well established a mat- Board were entitled to can be held that a school teacher upon no its predicated ter injuries negligent caused liable respect bad faith could claim supervision of her students. Williams *5 was survive since its bad faith Educ., 145 Kentucky 113 S.W.3d Dep’t. of viable, wholly underlying Davis, derivative a v. 65 (Ky.2003) citing Yanero (2001). cause action. “The premise 510 this S.W.3d to duty compеlled is that a child is attend Following hearing, Circuit protective custody of school so that ‘the Court determined that Turner and the mandatorily is substituted for teachers Board were entitled to claim the shield ” Williams, supra, parent.’ of the at immunity were entitled to 529, quoting Yanero at (quoting 148 judgment as a court matter of law. The County v. District McLeod Grant School in judgment entered favor their on March 360, 42 255 P.2d 362 No. Wash.2d 1, 2007, agreeing KSBIT that (1953)). special, fiduciary quasi-parental A against claims necessarily asserted failed it as mat relationship practical is created as a result of the mo- dismissal. KSBIT’s under such circumstances. ter granted tion to as dismiss action thus formed ‘special relationship’ appeal well. This followed. district and its stu- between school appeal, argues Fay- On that the duty imposes an affirmative on the dents by summarily ette Circuit Court erred dis- district, faculty, and its administra- its missing negligence Tur- steps to pre- tors to take all reasonable and by dismissing ner hеr bad faith claims harm its vent foreseeable to students. Summary judgment KSBIT. (citations omitted). Williams, at 148 supra, genuine there no issue proper where exists Additionally, provisions of material fact the movant is entitled 161.180(1) require each explicitly Kentucky to as a of law. matter teacher and administrator hold school (“CR”) 56.03; Rules of Civil Procedure to strict account for their conduct on pupils Center, Steelvest, Inc. Scansteel Service premises. provides It as school follows: Inc., (Ky.1991). 807 S.W.2d administrator in the Each teacher cannot Nelson contends that Turner public schools shall accordance with duty rules, super- bylaws claim because her regulations, duty report adopted vise and her sus- made and students board education for the conduct pected pursuant abuse to a local law enforce- to KRS 160.290 child a strict account pupils, pupils to KRS are hold agency pursuant ment 620.030 for their premises, conduct on schоol on nition neglected of a or abused child is set way school, to and from and on forth at KRS 600.020as follows: sponsored trips and activities. child [A] whose health or welfare is harmed or threatened with harm when does,
A however, teacher retain his parent, guardian, person or other some discretion with respect to the means exercising custodial supervi- control or or method which to duty exercise the sion of the child: supervise properly students and to protect (a) them from foreseeable harm. Inflicts or allows to be inflicted upon the child physical or injury emotional Nelson contends that the provisions of defined section other KRS 620.030 required Turner to make a means; than accidental report of the alleged abuse that had oc- (b) Creates or allows to be created a curred in her classroom to local law en- risk physical injury emotional forcement officials. KRS requires 620.030 defined this sеction to the child any person who knows or has reasonable means; other than accidental cause to believe that a dependent, child is (c) neglected, or Engages pattern abused to in a incident of conduct that ato local law agency parent enforcement renders incapable or the of caring Police; State for the the cabinet or immediate and ongoing its needs worker; designated of the child including, Commonwealth’s but not limited attorney county to, or the attorney, parental either incapacity due to alcohol telephone or otherwise. The and other drug statute also abuse as defined in *6 any person 222.005; defines to include a KRS teacher or personnel. The language of act this (d) Continuously repeatedly or fails or appear would thus require Turner to provide refuses to parental essential reported 600.020, have the incident. KRS child, protectiоn care and for the con- however, neglected defines an abused or child; sidering age child as: (e) Commits or allows to be committed child [A] whose health or welfare is abuse, an act of exploita- sexual sexual harmed or threatened with harm when tion, prostitution child; or upon the parent, his guardian, or person other (f) or Creates allows to be created a risk exercising custodial control or supervi- abuse, an act of sexual sexual
sion оf the child.... exploitation, prostitution or will be
child;
committed upon the (e) Commits or allows to be committed (g) child; exploits Abandons or abuse, an act of sexual exploita- sexual (h) provide Does not the child with ade- tion, prostitution child; or upon the care, quate food, supervision, clothing,
(f) Creates or allows to be created a risk shelter, and education or medical care abuse,
that an act of sexual sexual necessary for the child’s well-be- exploitation, prostitution will be ing. committed upon the child[.] (i) Fails to progress make sufficient to- To find that KRS ap- 620.030 does not goals ward identified as set forth in ply, there must a finding be that the act the court-approved plan case to allow upon committed the child not an act of for the safe return of the child to the sexual purposes abuse. For of Kentucky’s parent results the child re- code, juvenile 600, Chapter the defi- maining committed to the cаbinet and
43
Fitzgerald,
U.S.
in foster
Id.
remaining
care
fifteen
Harlow
(15)
(1982),
also
twenty-two
3. There must abe causal connection bility in the underlying negligence action,
between the wrongdoer’s conduct and the question of obligation KSBIT’s to pay distress; the emotional the claim adjudicated cannot be as a mat- Therefore, 4. The emotional ter of law. distress must be se- we also remand the vere. asserted KSBIT. Kroger Willgruber, Co. v. 920 S.W.2d The summary Circuit Court’s (Ky.1996), Rice, 65 citing Craft part, is vacated in and this mat- (Ky.1984). S.W.2d ter is remanded to that court for further question
It proceedings of law whether the consistent with opinion. offensive conduct reasonably can be re
garded
MOORE,
as so extreme
outrageous
Judge,
concurs.
permit
recovery. Whittington v. Whit-
COMBS, Chief Judge, concurs in part
tington,
port children. crimes those Nelson, as recounted Under facts high As stated court of Florida persuaded I am had manda- regard child state’s abuse report tory duty to make a statute, reporting that occurred be- contact inappropriate requirement for this [that reason Be- the students in classroom. tween if the an individual abuse even an I believe that this is established cause alrеady incident reported] has been entry I vacate of sum- issue of would reports of the same incident remand for a trial mary judgment and abuse from different sources tend remanding than to ask the merits rather gravity show of the situation. applicability the court construe gives This also HRS workers the abili- KRS 620.030. ty to contact more sources order
investigate incident confirm deny happened. it added.) Id. at (Emphases 279-280. *9 emphasized the over- The Allen court arching legislative intent as nature of 620.030(1) opportuni- to insure to KRS (not necessarily ty investigation for an prosecution) of the conduct: Teachers, N.Ky.L.Rev. 447 Kentucky’s (2000).