Negligence claim revived in student’s sexual assault case

A gross negligence claim against two school employees should be allowed to go forward, the Court of Appeals of Virginia has found.

The plaintiff and her daughter alleged a special education teacher and a substitute aide at her high school had demonstrated gross negligence and willful and wanton conduct in failing to protect the latter from alleged abuse at the hands of a fellow special needs student with a documented criminal history of sexual assault.

The Bedford County Circuit Court sustained two demurrers to the plaintiffs’ complaint.

On appeal, the plaintiffs argued that the court erred in finding they failed to sufficiently allege facts to support their claims of gross negligence and willful and wanton conduct.

The Court of Appeals affirmed the ruling regarding the willful and wanton conduct claim. But it reversed the ruling regarding the gross negligence claim and remanded the case for further proceedings.

Writing for the panel, Judge Stephen C. Frucci held that the Circuit Court erred in sustaining demurrers to the plaintiffs’ gross negligence claim.

The appellate court also rejected an argument from one of the teachers that the lower court had erred in finding a special relationship existed between them and the alleged victim.

“[G]iven the specific facts and unique circumstances of [the alleged victim’s] vulnerabilities and C.D.’s risk of sexual re-offense, combined with [the teacher’s] knowledge of such, … the amended complaint sufficiently stated a special relationship duty of [the teacher] to protect [the daughter] from sexual assault by C.D., while they were in her custody,” the court said, citing Commonwealth v. Peterson.

The 12-page opinion is Egan v. Ream (VLW 025-7-231).

Risk for educators

Nicholas Simopoulos, who practices education law in Richmond, said the facts in Egan sufficiently demonstrate gross negligence by the educators and the existence of a special relationship.

He said educators with knowledge of potential risk, harm or danger “must act accordingly and, at a minimum level, exercise some care and diligence.”

“My hope is that schools and educators … will review this decision and see it as an important reminder that significant harm can occur in mere minutes and that vigilance is consistently necessary,” Simopoulos said.

Hannah Bowie of Osterbind Law in Lynchburg represented the appellants. She declined to comment, citing the ongoing litigation. Stacy Haney of Haney Phinyowattanachip in Chesterfield, and Matthew J. Schmitt of Guynn Waddell in Salem, represented the appellees. They did not respond to a request for comment.

Empty classroom

The plaintiff’s 17-year-old daughter has Down syndrome and very limited verbal communication. Due to her disability, she received special education services from the public school division, including enhanced classroom support and supervision.

C.D. also received special education services. However, his individual education plan reflected a need for close supervision during interactions with other students, especially girls, because of a 2017 criminal charge of sexual misconduct in the school division.

In that incident, C.D. “was found with his hand under a female student’s shirt.”

Educators reported that C.D. had dangerously impulsive behavior and was “a moderate risk for committing sexual re-offense.”

In March 2020, the daughter and C.D. were in a special education classroom working on assignments. C.D. asked if he could take his assignment materials to an empty classroom. The teacher said yes and gave him her keys. C.D. left and took the alleged victim with him. Neither the teacher nor the aide immediately noticed. While in the empty classroom, the plaintiffs allege that C.D. sexually assaulted the alleged victim.

While C.D. and the plaintiff’s daughter were gone, the aide apparently looked down the hall. However, he took no immediate action to locate the missing students, according to the court record.

Less than 10 minutes later, the teacher stepped out to return something to her classroom. Without her keys, she was unable to open the door. C.D. told the plaintiff’s daughter, who was crying, to open the door. When she did, the teacher entered the classroom and told C.D., “This is not a good look because of what happened in the past.”

The girl then “pulled her pants forward, indicating to [the teacher] that she had been touched by [C.D.],” according to the court record.

The teacher, the school principal and an assistant principal interviewed C.D., who admitted to sexually assaulting the victim, according to the plaintiffs’ complaint.

The plaintiff took her daughter to a local hospital, where a forensic nurse confirmed that she suffered physical injuries consistent with sexual assault.

The plaintiffs sued in March 2022. The teacher and the aide demurred. Following a hearing, the Circuit Court sustained the aide’s demurrer, finding insufficient facts for a claim of gross negligence.

The trial court granted leave to file an amended complaint. The defendants again filed demurrers asserting that the amended complaint lacked sufficient facts for claims of gross negligence and willful and wanton conduct.

In March 2024, the Circuit Court heard the demurrers to the amended complaint and sustained them, this time with prejudice.

The plaintiffs appealed.

Duty to protect

Frucci wrote that allegations in the plaintiffs’ amended complaint, if proven, would sufficiently give rise to a duty on the part of the teacher to protect the daughter from third persons.

The plaintiffs alleged that the teacher knew or should have known that the victim had Down syndrome and low cognitive and adaptive functioning, comparable to that of a 4-year-old; she required complete dependance on others for all aspects of her life; and she required close supervision at school for her safety.

Additionally, the plaintiffs alleged that the teacher knew or should have known that C.D., who was in the same classroom, had a history of sexually assaulting a female classmate and had a propensity to do it again.

The opinion cited Patterson v. City of Danville in holding that Virginia’s standard for gross negligence “is one of indifference, not inadequacy.”

“Considering all these facts as alleged in the amended complaint, we hold that the amended complaint sufficiently asserts ‘an utter disregard of prudence amounting to complete neglect of the safety of another,’” Frucci wrote.  However, the court found that the claim for willful and wanton conduct could not move forward, noting that “the analysis here is similar to the above analysis for gross negligence, with the additional factor of a conscious awareness of the risk.”

Although the complaint alleges that the teacher gave a student with a known history of sexual assault the keys to an empty classroom, “it is not alleged, nor can it be reasonably inferred, that she instructed or allowed C.D. to take [the plaintiff’s daughter] with him. Further, there are no allegations that [the teacher] should have been aware that C.D. would try and leave the classroom with [the daughter] or that [the teacher] was aware that her actions would result in C.D. being alone with [the daughter]. The facts pleaded simply do not support a claim for willful and wanton conduct,” Frucci wrote.