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Gross negligence claim stated in school assault case

Where plaintiff alleges a classmate sexually attacked her during a school field trip, she has stated a gross negligence claim against defendant school officials.


Plaintiff alleges that a classmate, KN, sexually assaulted her on a bus during a school field trip. Defendants Bowley and Rovinsky, who taught at defendant Congressional School, supervised the April 2017 trip, along with Hinrichs, a school administrator. Later, according to plaintiff, KN texted her sexually explicit photos and slapped her on one occasion in the cafeteria.

In October, plaintiff told her mother all of this. The mother informed Hinrichs about the assault and the photos. Plaintiff alleges that Hinrichs told the mother to send plaintiff to school as if nothing had happened and denied her request to relocate plaintiff’s locker, which was next to KN’s. Hinrichs and Marsh, the head of the school, and did not suspend or expel KN.

The complaint alleges that the school knew about “KN’s inappropriate behavior towards females since as early as the fall of 2011 when another mother reported a sexual assault by KN against her daughter.”

Plaintiff says she now has “physical and mental health issues, bouts of depression, suffers from chest pains, loss of sleep and weight loss.”

Plaintiff sued by her next friend and mother. She alleged counts of negligence, negligence by assumption of a duty, gross negligence and intentional infliction of emotional distress. She claimed compensatory damages and seeks punitive damages as well.

Defendants have demurred to assumption of the risk, gross negligence, emotional distress and punitive damages.

Assumption of duty

A defendant must expressly state an intention to assume a duty to establish a claim for negligence based on assumption of a duty. “[T]he mission statement of Congressional, advocating a bully-free zone and a free and safe learning environment, does not rise to an assumption of a duty to protect Plaintiff from KN. …

“KN assaulted Plaintiff while they were on the bus returning from the field trip. While [Hinrichs, Bowley and Rovinsky] were charged with supervising the children during the field trip, the Complaint fails to allege any express promise, agreement, or intent to protect Plaintiff. While Plaintiff alleged that they had a duty to stop KN from sexually assaulting Plaintiff because of their supervisory role, … this cannot rise to a voluntary undertaking of a duty to protect Plaintiff.”

The demurrers are sustained.

Gross negligence

“[G]ross negligence ‘is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.’ … ‘Whether certain actions constitute gross negligence is generally a factual matter for resolution by the jury and becomes a question of law only when reasonable people cannot differ.’

“Plaintiff alleged that Congressional was on notice of KN’s behavior since 2011 and that Defendants failed to respond to KN’s behavior and protect Plaintiff, resulting in serious trauma to Plaintiff. Given the assault on the bus and the response of the school, reasonable minds may differ as to whether the Defendants actions constituted gross negligence. This is a matter for the jury.”

The demurrers are overruled.

Punitive damages

“Punitive damages are only appropriate when the defendant exhibits willful or wanton conduct; in other words, the defendant must have ‘full knowledge that an injury would result from the act committed.’ … If reasonable minds could disagree whether the alleged conduct warrants punitive damages, then the issue must go to the jury. …

“Plaintiff alleges Congressional was on notice as early as 2011 about KN’s inappropriate behavior. However, the only staff alleged in the Complaint who has been at the school since 2011 is Mr. Bowley. Further, the only allegations against Mr. Bowley and Ms. Rovinsky involve the bus incident. No reasonable minds could differ as to Mr. Bowley’s and Ms. Rovinksy’s lack of malicious conduct or conscious disregard for Plaintiff’s safety.”

Plaintiff alleges that Marsh and Hinrichs “did nothing in response to Plaintiff’s requests to move her locker, have adult supervision when KN was present, and to suspend or expel KN. Reasonable minds may differ as to whether this conduct warrants punitive damages. Because Ms. Marsh and Mr. Hinrichs are subject to punitive damages, Congressional is subject to the same.”

The demurrers are sustained as to Bowley and Rovinsky and overruled as to Marsh and Hinrichs.

Emotional distress

“A plaintiff’s claim of intentional infliction of emotional distress may survive the demurrer if she shows the Defendants acted recklessly, and that this conduct was ‘outrageous and intolerable [and] … offen[sive] against the generally accepted standards of decency and morality,’ resulting in severe emotional distress to Plaintiff.”

There is evidence that plaintiff has suffered severe emotional distress. However, “the Defendants’ conduct (excluding KN’s) does not rise to the required level of outrageousness.”

The demurrers are overruled.

Doe v. Congressional School, Inc., et al. Case No. CL-2019-4131, Aug 16, 2019; Fairfax Cir. Ct. (Smith). Broderick C. Dunn, Philip C. Krone, John H. Carstens, Taylor R. Miles, Jesse R. Binnall, Joseph Jay III for the parties. VLW 019-8-072, 13 pp.