Kreutzer v. Aldo Leopold High Sch.

• Decision Date: 07 August 2017
• Docket Number: A-1-CA-35286
• Parties: Lori KREUTZER and Marcelle Caruso, Plaintiffs-Appellants, v. ALDO LEOPOLD HIGH SCHOOL, Defendant-Appellee, and Nisha Milligan, Barbara Jimenez, and Safeco Insurance Company of America, Defendants.
• Court: Court of Appeals of New Mexico

409 P.3d 930

Lori KREUTZER and Marcelle Caruso, Plaintiffs-Appellants,

v. ALDO LEOPOLD HIGH SCHOOL, Defendant-Appellee,andNisha Milligan, Barbara Jimenez, and Safeco Insurance Company of America, Defendants.

A-1-CA-35286

Court of Appeals of New Mexico.

Filing Date: August 7, 2017

Law Office of Christopher D. Lee, LLC, Christopher D. Lee, Albuquerque, NM, for Appellants.

Narvaez Law Firm, P.A., Henry F. Narvaez, Albuquerque, NM, for Appellee.

LINDA M. VANZI, Chief Judge

{1} This appeal requires us to answer two questions of law. The first question, one of first impression, is whether defendant Aldo Leopold High School (ALHS), a charter school in Grant County, New Mexico, is a public school and therefore subject to the protections afforded to governmental entities by the New Mexico Tort Claims Act (the TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015). The second question is whether the negligence claim asserted against ALHS in this case falls within Section 41-4-6(A) of the TCA, an exception to the TCA's general rule of governmental immunity from tort liability. In the proceedings below, ALHS argued in separate motions that it is entitled to summary judgment because, as a matter of law, (1) ALHS is a public school protected by the TCA, and (2) Plaintiffs' negligence claim does not fall within the waiver of TCA immunity provided by Section 41-4-6(A). The district court granted both motions. We affirm both orders.

FACTUAL BACKGROUND

{2} At the end of the school day on March 1, 2012, Marcelle Caruso was walking to her car in the ALHS student parking lot when she was assaulted and beaten by fellow ALHS student Nisha Milligan. Nisha had been sitting in a friend's car in the school parking lot waiting for Marcelle, and when Marcelle came out of the school building, Nisha walked across the parking lot, called Marcelle's name, and began beating her. Nisha knocked Marcelle to the ground and continued to beat her, causing serious injuries, including a torn right anterior-cruciate ligament that required surgical reconstruction

and painful rehabilitation.¹

{3} Nisha later said she did this because she was angry with Marcelle for bumping her in the hall that day and for laughing at her at an earlier time she could not recall. Nisha did not report to any ALHS teacher or staff member that Marcelle had laughed at her. Marcelle testified that before March 1, 2012, she had never been threatened by anyone at ALHS, including Nisha, and was never afraid for her safety at school.

{4} ALHS Director Eric Ahner testified that Nisha told him after the incident that Marcelle "was talking badly about her" and "was giving her bad looks," but that before the incident, he had no information that Marcelle had ever bullied or harassed Nisha, and that he had seen "no indications whatsoever of any propensity of [Nisha] being violent or physical with anybody, student or staff." During the three years she attended ALHS, Nisha had no altercations with other students. Ahner stated in an affidavit that there were no student-on-student altercations in the ALHS parking lot in the seven years between the school's inception in 2005 and the March 1, 2012 assault.

{5} When the assault took place, ALHS had written policies prohibiting student behavior including belligerence, fighting, bullying, harassment, and conduct in violation of state and federal law but no written policies specifically relating to supervision of the parking lot or to prevention of student-on-student altercations. Training is conducted for staff members, and staff meetings held at the beginning of each school year devote significant time to basic safety within the school and to such safety-related matters as CPR training, fire drills, managing behavior, recognizing and de-escalating conflicts between students, handling altercations, and other aspects of student supervision. Each year, ALHS staff and students develop a set of "school norms." ALHS has also conducted formal training with students to address issues such as conflict resolution.

{6} ALHS faculty and staff are given assignments each year, including supervising the student parking lot after school. In addition to the training all staff members receive at the beginning of the school year, the individual assigned to supervise the parking lot receives training concerning traffic issues such as speed limits, keeping students away from traffic, and where students may park, as well as about applying the same principles of child safety, including handling student-on-student altercations, outside the school building as are applied inside.

{7} Judy Runnels was assigned to monitor the student parking lot in 2012. Although she was at ALHS and on monitoring duty March 1, 2012, she was not in the parking lot at the time of the assault but was in the bathroom. At the end of classes that afternoon, Runnels left the classroom where she had been teaching, walked down the hall, dropped off her books in another classroom, stopped to use the bathroom, and went outside through the school's main entrance. When she arrived in the parking lot, the incident between Nisha and Marcelle was over and there was no sign that anything had happened. It was not until she went back into the building after her monitoring shift ended that Runnels heard about the fight.²

{8} Ahner commenced an investigation as soon as he learned of the incident. He disciplined Nisha and removed her from the general population at school by assigning her an "interim alternative educational placement." Nisha did not graduate from ALHS. Marcelle missed three months of school as a result of her injuries, stopped participating in dance, and eventually moved to New Jersey.

PROCEDURAL BACKGROUND

{9} In July 2013 Lori Kreutzer, as next friend of her minor child Marcelle (collectively, Plaintiffs), filed suit against ALHS and others. Against ALHS, Plaintiffs assert a negligence claim based on allegations that ALHS "owed a duty to Marcelle ... to use ordinary care to keep the premises of its school safe, including the parking lot" and breached that duty "by failing to take reasonable precautions to keep the school safe" and "by failing to provide adequate security or supervision in the school parking lot[.]"

The complaint does not identify a dangerous condition existing in the school parking lot, or allege that ALHS knew or should have known that the parking lot was unsafe, or that ALHS knew or should have known that Nisha had a propensity for violence or posed a threat to Marcelle.

{10} The complaint alleged that ALHS is "a privately operated charter school" and, therefore, "does not fall within the scope of" the TCA, but that the immunity afforded to government entities by the TCA is waived by Sections 41-4-4 and -6 "for [ALHS's] negligence and that of its employees in failing to properly maintain the school parking lot in a safe condition." In answering the complaint, ALHS stated that it is a charter school, as defined in the Charter Schools Act (the CSA), NMSA 1978, §§ 22-8B-1 to -17.1 (1999, as amended through 2015), and "is thus a public school ... subject to the [TCA.]" ALHS also raised TCA-based affirmative defenses.

{11} ALHS moved to dismiss under Rule 1-012(B)(6) NMRA, arguing that (1) ALHS is a charter school under the CSA and, thus, a public school subject to suit only if the TCA waives immunity for the claim asserted against it; (2) Plaintiffs do not allege a "pattern" of dangerous behavior or a dangerous condition on the premises, but only a single instance of negligent supervision, which does not fall within the Section 41-4-6(A) immunity waiver; and (3) the TCA bars Plaintiffs' claims for punitive damages and pre-judgment interest. Plaintiffs opposed the motion, arguing that nothing in the text of the TCA or CSA indicates that "the Legislature intended privately operated schools to be immune from tort liability," as the TCA does not mention "charter schools" and the CSA does not mention "immunity," and that ALHS had not shown that it met the definition of a charter school, or that a charter school is a public school entitled to TCA immunity. Plaintiffs also maintained that their argument was not that the act of violence alleged in the complaint, by itself, rendered the ALHS parking lot unsafe, but that "a dangerous condition existed on the premises, namely the absence of adequate security, supervision, or employee oversight to prevent student fights."

{12} In its reply, ALHS countered that a charter school cannot exist unless it complies with the CSA's requirements and that charter schools are public schools subject to the TCA. As for Plaintiffs' contention that their claim falls within the Section 41-4-6(A) waiver, ALHS argued that Plaintiffs' claim is that the fight would not have occurred if there had been adequate supervision and that, as a matter of law, Section 41-4-6(A) does not waive immunity for claims of negligent supervision. The district court denied the motion to dismiss in an order that did not explain the basis for its decision.

{13} ALHS subsequently moved for summary judgment on the issue of its status as a public school subject to the TCA. The motion attached the charter agreement and documents evidencing the New Mexico Public Education Commission's renewal of ALHS's state charter, noting that the district court had advised at the hearing on the motion to dismiss that it could not determine whether ALHS was subject to the TCA without reviewing the charter agreement. Plaintiffs did not respond to this motion, and the district court granted it, ruling that ALHS "is a Public Charter School under the provisions of the [TCA.]"³

{14} ALHS separately moved for summary judgment on the ground that, as a matter of law, Section 41-4-6(A) did not waive TCA immunity because Plaintiffs' claim is for negligent supervision, and precedent holds that Section 41-4-6(A) does not waive immunity for such claims. ALHS cited Encinias v. Whitener Law Firm, P.A. , 2013-NMSC-045, ...