Campbell v. Montgomery County Bd. of Educ.

• Decision Date: 10 November 1987
• Docket Number: No. 257,257
• Citation: 73 Md.App. 54,533 A.2d 9
• Parties: , 42 Ed. Law Rep. 1239 Dawn Michelle CAMPBELL, et al. v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 54

73 Md.App. 54

533 A.2d 9, 42 Ed. Law Rep. 1239

Dawn Michelle CAMPBELL, et al. v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al.

No. 257 Sept. Term 1987.

Court of Special Appeals of Maryland.

Nov. 10, 1987.

Martin H. Freeman (Patricia P. Richardson, Robert K. Jenner and Freeman & Richardson, P.A., on brief), Bethesda, for appellants.

Clyde C. Henning, Associate Co. Atty. (Paul A. McGuckian, Co. Atty. and Joann Robertson, Sr. Asst. Co. Atty., on brief), Rockville, for appellees, Montgomery County Bd. of Educ. and Rubinstein.

Joseph A. Lynott, III (Lynott and Craven, P.A., on brief), Rockville, for appellee, Turner.

Argued before GILBERT, C.J., and GARRITY and POLLITT, JJ.

GILBERT, Chief Judge.

On a motion for a judgment non obstante veredicto, the trial judge in setting aside a substantial jury verdict opined:

"A 13 year old with an IQ as high or higher, at that time, than most of the people in this room, with capacity and experience--who had engaged in prior voluntary sex and had then discussed it with her mother, who had previously, against the rules of the school and knowingly so, entered the boys' locker room on four or five other occasions, and undertook directly and knowingly to do so about three months after she testified that she was forcibly raped by two individuals, one holding her while the other raped her--all of which gave her a degree of experience, a degree of knowledge, a degree of understanding and a degree of assault, which places her in a category at the highest level of the scale, not at the lowest level, comparing what she undertook to do, with that knowledge, that experience, that capability--and she says to Mr. Rubinstein, 'Why didn't you find me and protect me?' "

The legal effect of that ruling was to declare that the young female plaintiff was guilty of contributory negligence or assumption of the risk, as a matter of law, when she impermissibly entered a boys' locker room and was sexually assaulted and molested.

In this appeal we shall examine the propriety of that ruling. There are, however, other peripheral issues we shall also address.

First, we set the scene as revealed by the testimony. On a late October day, 1983, Dawn Michelle Campbell was attending Sligo Junior High School in Montgomery County, Maryland. Because she had broken a finger in a fight with another girl, she was excused from participating in the scheduled physical education class.

According to Dawn's testimony, she was in the gymnasium when the class period began. She left the class and went outside to the athletic field when a teacher, Steven Rubinstein, ordered her back inside the building because she was being disruptive of his class. Dawn testified that she was not told exactly where she should report when she re-entered the school building.

Rubinstein's version of that portion of the facts is somewhat different. He told the jury that he spoke to Dawn after he had been called over by another teacher, Mr. Quail. That teacher was standing in an area near the school parking lot. With him were two or three of Rubinstein's students, including Dawn and another student, "Melody." Quail allegedly told Rubinstein that the students had been talking in the hallway. Rubinstein, who was the boys' physical education teacher, ordered his students to join the rest of the class. He told Dawn and Melody to go to their own class "out in the field." Rubinstein said that he watched the two girls walk some distance towards their class on the playing field, and then he proceeded to his own class.

Dawn further related to the court that when she re-entered the building she met a fellow student, "Georgia," who requested they go into the boys' locker room. Dawn agreed. Although Georgia started toward the locker room with Dawn, she apparently did not enter it.

According to Dawn, she had been in the boys' locker room on four other occasions during the preceding two months. Each of those occasions was without anyone's permission to enter the room and without her alerting any teacher as to her intent. Rather, she testified that she knew that she was not supposed to enter the locker room. Furthermore, she deliberately concealed that activity from the school staff as illustrated below:

"Q. Did you tell any teacher, or anyone else on the school staff, that you were going to go to the boys' locker room the first time that you went there?

A. No.

Q. Did you tell the teacher, or any member of the staff, anytime before you went to the boys['] locker room?

A. No.

Q. Did you try to hide the fact that you were going to that boys' locker room?

A. Yes.

Q. How did you do that?

A. I didn't tell anybody, and I didn't let anybody see me go in, any teachers.

Q. You made sure that no teacher was looking at the time you went in, is that right?

A. Yes."

On one of her visits to the boys' locker room, Dawn was shown an old shower area in the back of the locker room. The area was "off limits" to the students. Two sets of lockers with a piece of plywood attached to them partitioned the restricted area from the rest of the boys' locker room. Nevertheless, there was a small space between the lockers and the edge of the wall.

When Dawn entered the boys' locker room on the day of the happening giving rise to this litigation, no one else was there. Immediately after she entered, she heard somebody coming, but she made no attempt to leave the room. Thinking the footsteps might be those of a teacher, Dawn testified that she hid in the old shower area because she knew she "was not supposed to be in [the boys' locker room, and she hoped to avoid detection by a teacher]." As soon as she entered the restricted area, Matt Stoulberg, a student, followed her. The two were engaged in "voluntary" osculation for no more than thirty seconds when Rudy Crutchfield, another student, walked into the area. Matt and Dawn stopped kissing. Rudy grabbed Dawn from behind, pulled her onto his lap and began molesting her. While Dawn was screaming and trying to push Rudy away, a group of about fifteen boys arrived. "They all just piled on her and stuff," Matt Stoulberg said. Dawn related that the boys, of whom she could only name a few, grabbed her, pulled off her sweat shirt and brassiere, and sexually molested her by groping and fondling her breasts and "between ... [her] legs." Minutes later, a second group of students, including Clarence Turner, joined in the assault. Dawn narrated that at that time some of the students from the first group departed. She told the jury that "people were just going in and out the whole time." The assault by the second wave consisted of about ten to fifteen students molesting Dawn in the "same way as the first" group had.

Dawn also told the jury that Turner said he wanted to rape her. Sylvester Hackney, one of the students who witnessed the incident, identified Turner as one of the students that he "pulled off" of Dawn. Alfred Giles, another student who witnessed the sexual molestation, also identified Turner as one of the assailants.

According to Dawn, when she screamed for help, the boys covered her mouth so that she would not be heard. Giles in a videotaped deposition, related that he heard Dawn screaming "so loud that she could not scream no louder." At that time Felix hit her in order to quiet her. Giles further stated that he saw Felix cover Dawn's mouth. The assault lasted about one-half hour and came to an end when the bell rang and the group in the old shower area "started to break up" and depart.

While the assault was occurring in the old shower area, Rubinstein was on the playing field. He left the field a few minutes after the first bell had rung to talk to the boys and to gather the physical education equipment. By the time he returned to the school building, some of the students had preceded him into the locker room. As he walked into the locker room, he heard footsteps and some "banging" coming from the old shower room. He yelled, "[W]hoever is back there, get out of there." Rubinstein heard footsteps, and then three to five male students squeezed out of the opening into the shower area. After reprimanding the students for being in an "off-limits" area, Rubinstein said that he stuck his head in the opening between the lockers and the wall and listened for 10 to 15 seconds. Rubinstein testified that he then made "the statement that there better not be anybody else, and then I listened again, and I was satisfied there was nobody in there." Rubinstein told the jury that, although he could not see much other than the area directly in front of the opening, he decided not to go into the old shower area because he would not physically have fit through the opening. He weighed about 210 pounds at the time of the incident. Rubinstein remained in the boys' locker room for the rest of the period, probably five or six minutes, and he did not hear any noise coming from the restricted area.

When the dismissal bell rang, Rubinstein dismissed the boys, and he watched them leave. After visiting the guidance office, he walked back toward the locker room "a couple of minutes" later. While enroute he was told by a student that there was a girl in the boys' locker room. Rubinstein went immediately to the boys' locker room to see if there was a girl there, but he did not look in the old shower area.

Dawn testified that after the bell rung, she left the locker room with the assistance of Alfred Giles and another youth who, having witnessed the assault, went into the shower area to help Dawn gather her clothes and leave the locker room. Sylvester Hackney, who also claimed to have helped Dawn leave the locker room, asserted that he told Dawn to duck down as she was leaving the room so that she would not be seen by the teacher whose figure he had observed through the window. Dawn went to the gym, where a substitute teacher, noticing her appearance, inquired as to what had happened. Apparently not satisfied with Dawn's answer that she...