BRADLEY T. v. CENTRAL CATHOLIC HIGH SCHOOL

• Decision Date: 22 November 2002
• Docket Number: No. S-01-552.,S-01-552.
• Citation: 653 N.W.2d 813,264 Neb. 951
• Parties: BRADLEY T. and Donna T., husband and wife, as parents, guardians, and next friends of D.T., a minor child, Appellees, v. CENTRAL CATHOLIC HIGH SCHOOL, Appellant.
• Court: Nebraska Supreme Court

653 N.W.2d 813

264 Neb. 951

BRADLEY T. and Donna T., husband and wife, as parents, guardians, and next friends of D.T., a minor child, Appellees, v. CENTRAL CATHOLIC HIGH SCHOOL, Appellant.

No. S-01-552.

Supreme Court of Nebraska.

November 22, 2002.

William A. Francis, of Cunningham, Blackburn, Francis, Brock & Cunningham, Grand Island, for appellant.

James H. Truell, of Truell, Murray & Walters, P.C., Grand Island, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Bradley T. and Donna T. as "parents, guardians, and next friends" of D.T., a minor, filed this action in the district court for Hall County on behalf of D.T. against Central Catholic High School (CCHS), of Grand Island, Nebraska, after D.T. was sexually assaulted at CCHS by another student while D.T. was enrolled at the school. Following trial, the jury found in favor of Bradley and Donna. CCHS appeals. For the reasons set forth below, we affirm.

STATEMENT OF FACTS

On Thursday, November 6, 1997, D.T. was a sophomore attending CCHS. After classes had been dismissed for the day, D.T. remained at school to participate in conditioning exercises with friends on the wrestling team. She ran the hallways and stairs with the wrestling team for approximately 45 minutes and then went to the stage area in the gymnasium and began operating the wrestling clock, timing wrestlers who were working out. No adults were present in the gymnasium while the students were working out.

While D.T. was sitting on the stage, J.R., also a sophomore at CCHS, entered the stage area of the gymnasium. J.R. had just completed daily conditioning exercises with the basketball team. J.R. tackled D.T. as she was sitting on the stage and began grabbing D.T.'s chest and groin. J.R. then pinned D.T. to the floor, stating, "`If you don't get up within the next five seconds, you'll have to give me a hand job.'" Another student finally pushed J.R. off of D.T., and D.T. left the stage area and went to the girls' locker room.

Unbeknownst to D.T., J.R. followed her into the girls' locker room, and as D.T. sat down on a locker room bench, J.R. shoved her back onto the bench and straddled her body. No school personnel were present in the girls' locker room.

As he was straddling D.T., J.R. attempted to put his hand up D.T.'s shirt and down her pants. When he was unsuccessful in those attempts, he stood up, pulled his pants down, and attempted unsuccessfully to pull D.T.'s pants down. While his pants were down, J.R. sat on D.T.'s chest and rubbed his exposed penis over her mouth and cheeks. When D.T. would not open her mouth, J.R. pinched her nose to block her breathing, to try to force her to open her mouth. During the trial, D.T. described these events as follows: "And I clenched my mouth even harder and just went—turned my head away, and he kind of laughed and thought it was funny, but that—you know, like it was a game. He did that two or three times, trying to clench my nose." J.R. then stood up, and D.T. was able to get off the bench and leave the locker room. J.R. followed D.T. after she had left the locker room and was headed toward the school lobby, suggesting to her that her locker door was open and that "`[they] should go check it.'" When D.T. told him that the door was shut, he threatened, "`Well, I can go open it. Then you'll have to come shut it.'" Ultimately, D.T. reached the school lobby, where she encountered friends. She caught a ride home with one of these friends.

D.T. did not tell her parents about J.R.'s actions when she reached home. The next day, Friday, November 7, 1997, she reported the incident to Joyce Messing, CCHS' guidance counselor. D.T. testified about her initial meeting with Messing as follows:

[W]hen I walked in to Mrs. Messing, the first thing I did was start bawling.

....

... She asked me what was wrong, and I told her that I had been harassed by— I kept on using the word "harassed." I never used the word "assault," even though that's what it was—I told her by another student. She said, "Wait a second here." She stopped me from going any further, and she mentioned, she goes, "Is this person [J.R.]?" And I said, "Yes." And I didn't know why she guessed, but I said, "Yes."

Messing then asked D.T. to wait while she brought John Golka, the principal of CCHS, into the office. D.T. then informed Golka and Messing about the preceding day's incident involving J.R. Golka told D.T. that he would meet with J.R. on Monday.

On Sunday, November 9, 1997, D.T. told her mother, Donna, about the assault. On Monday, November 10, D.T. returned to school. During the day, she passed J.R. at least twice in the hallway. On these occasions, J.R. would make "gestures" to D.T., such as unbuttoning his shirt. On Monday afternoon, Golka advised D.T. that he had not yet talked to J.R.

On Tuesday, November 11, 1997, D.T. continued to see J.R. in school, where he would give her "weird looks." On Tuesday, Golka required that D.T. produce evidence of the incident with J.R., and during the day, D.T. brought three or four students to Golka to inform him about what they knew concerning the incident. During this period, D.T. spoke with Messing more than once about her apprehension due to continuing to encounter J.R. at school.

J.R. was expelled from school on Wednesday, November 12, 1997, after admitting a portion of the allegations reported by D.T. D.T. learned about J.R.'s expulsion the same day.

Prior to J.R.'s removal from school, Donna had taken D.T. to the Crisis Center and the Family Violence Coalition in Grand Island so that D.T. could receive counseling as a result of J.R.'s assault. On Wednesday, November 12, 1997, a representative of the Family Violence Coalition contacted the Grand Island Police Department regarding the incident. A police officer with the Grand Island Police Department investigated the incident as a sexual assault and spoke to D.T. on November 16.

Shortly after D.T. and Donna had sought help at the Crisis Center, D.T. began to see Linda Renter Beran, a mental health practitioner associated with the Crisis Center. Beran testified at trial over objection. Initially, Beran saw D.T. once a week for 4 weeks. D.T. again had several sessions with Beran in the fall of 1998. Beran testified that D.T. reported that the incident affected her physically, hampered her ability to sleep, caused nervousness and a decrease in her self-confidence, and diminished her trust in the system and in the ability of the people that she would have trusted to protect her.

In addition to D.T.'s testimony recounting the assault, she testified as to the distress she suffered as a result of the incident. D.T. testified that as a result of the assault, she was scared, tense, nervous, and angry. She testified that her grades dropped after the assault and that she stopped participating in afterschool athletic activities because she "was kind of scared." She further testified that following the assault, her relationship with her parents changed in that "my relationship with ... my parents actually didn't go so well." She stated that the assault also affected her relationship with her friends. "I just felt like nobody else wanted to listen, so I wouldn't talk to anybody, not family, not friends, not boyfriends. Nobody just knew about me. I just kept everything quiet."

Donna also testified at trial concerning the changes she witnessed in D.T. after the November 6, 1997, incident. She stated that before the incident, D.T. had been very talkative, outgoing, and friendly. Donna testified that after the incident, D.T. became "very angry, very controlling, difficult to communicate with, very quiet" and that she ceased to be an outgoing individual. Donna also testified that D.T.'s grades in school dropped, from A's to B's and C's. Following the November 6 incident, Bradley and Donna took D.T. to her physician at least twice, seeking treatment for D.T.'s inability to sleep and for the stomach pains she was experiencing.

Bradley and Donna brought a two-count negligence action on behalf of D.T. against CCHS, Golka, and Robert Ripp, CCHS' superintendent. During the proceedings, Golka and Ripp were dismissed as defendants. An amended petition was filed on November 13, 2000. In the amended petition, Bradley and Donna alleged that as a result of CCHS' negligence, D.T. had suffered psychological and emotional injury, public humiliation, and pain and suffering associated with the incident, for which Bradley and Donna sought special and general damages. CCHS did not demur to the amended petition.

The 2-day jury trial began on February 5, 2001. The record contains approximately 300 pages of testimony from seven witnesses and seven exhibits. The narrative of events recited above in this opinion is taken from the testimony.

Golka testified at trial. Golka testified, inter alia, that he was aware of a previous incident involving J.R. resulting in a referral in which a female student other than D.T. had alleged that J.R. had inappropriately touched her. At the time of the earlier alleged assault, Golka stated that he had advised J.R. that "if the allegations were true, he'd need to stop. If they were not [true], that then he needed to continue to not engage in anything of that nature." Golka acknowledged that providing for the safety of children attending CCHS was a "top priority" of the school.

Ripp also testified at trial. Ripp agreed with Golka that maintaining a safe environment for students at CCHS was the school's responsibility. During cross-examination, Ripp was asked whether he agreed with Golka that one of the priorities of the school system was to watch out for the safety of the children. Ripp responded, "Absolutely."

Messing also testified at trial. According to Messing, it was her understanding generally that incidents such as that of November 6, 1997, "need[ed] to be immediately reported to law...