Doe v. Baum
Decision Date | 18 April 2002 |
Docket Number | No. 01-1159.,01-1159. |
Citation | 348 Ark. 259,72 S.W.3d 476 |
Parties | John DOE, Jane Doe, and Mary Doe v. Clyde BAUM, Fountain Lake School District, Arkansas School Boards Association, and Arkansas Department of Education. |
Court | Arkansas Supreme Court |
Bachelor & Newell, by: Angela R. Echols and C. Burt Newell, Hot Springs, for appellants.
Laser Law Firm, by: Dan F. Bufford and Brian A. Brown, Little Rock, for appellees.
Appellants, John Doe, Jane Doe, and Mary Doe appeal the July 17, 2001, order of the Garland County Circuit Court, granting summary judgment to appellee, Arkansas Department of Education, ("ADE"), granting partial summary judgment to appellees, Clyde Baum,1 and Fountain Lake School District ("FLSD"), and certifying the case for appeal pursuant to Ark. R. Civ. P. 54(b). Appellants raise four points for reversal: (1) the trial court erred in ruling that Ark.Code Ann. § 6-17-1113 (Repl.1999) did not provide coverage in this case; (2) the trial court erred in ruling that Ark.Code Ann. § 6-19-105 (Repl.1999) had been repealed by implication; (3) the trial court erred in not allowing appellants to proceed under Ark.Code Ann. § 6-19-118 (Repl.1999); and (4) the trial court erred in granting summary judgment on the issues of gross negligence and/or reckless indifference and in its failure to submit such issues to the jury. We affirm.
Mary Doe, a third-grade girl, was allegedly raped by an eighth-grade boy named James Roe while returning home from school one day in the fall of 1998 on a school bus owned by FLSD and driven by Baum. As a result of this incident, on April 21, 1999, Mary's grandparents and adoptive parents, Mr. and Mrs. Doe, filed the instant action against Baum, alleging torts of common negligence, gross negligence, reckless indifference, and outrage. FLSD was included as a defendant under the theory of vicarious liability. ADE was also included as a defendant for coverage under its "School Worker Defense Program." Finally, the Arkansas School Boards Association ("ASBA") was included as a defendant for coverage under its school motor vehicle liability program.
Mary testified in her deposition that on the day the rape in question occurred, James had commanded all the other students to move up to the front of the bus. Mary further testified that James made her lay down, and he then pulled her pants down. Mary testified that she did not try to call out to or try to run to her brother, did not call out to or try to run to the bus driver, did nothing to try to get away from James, and did nothing to try to bring the incident to the attention to the other students on the bus. Mary also testified that she did not tell anyone about the incident after she got off the bus and that the first person she told about the incident several months later was Sharon Kyle, one of her teachers, who told her to speak about the incident with Linda Woodson, the school's guidance counselor. Mary told Ms. Woodson that she had been raped on the bus and at two other locations, and Ms. Woodson notified the police. Mary related in her deposition that James had put his hand down her pants another time on the bus and then in the woods and the field next to her home.
Mary also related in her deposition that James had instigated another student, Kenny, to put his hand down her pants while she was on the school bus driven by Baum the previous year. Mary testified that she tried to scream so that the bus driver could hear her, but that she was unable to scream because Kenny had put his arm over her mouth so that she could not scream. Mary testified that as she left the bus, she notified Baum of the incident, but that Baum told her that he could not do anything about it because Kenny had already disembarked from the bus. Mary testified that she did not know whether Baum had reported the incident with Kenny to school officials. Mary also testified that she and her grandmother had gone up to the school, where they told Ms. Cox, the K-2 principal about the incident involving Kenny, and Kenny's bus-riding privileges were suspended. Mary stated in her affidavit that she told Ms. Cox that James had been involved in the incident with Kenny. Mary further stated in her affidavit that her grandmother had told Charles Clark, the Superintendent of FLSD, and Ronnie Schroeder, Baum's supervisor, what had happened.
Kory Doe, Mary's brother, who was one of the students on the bus at the time of the incident with James, testified in his deposition that on the day of the incident, he bent down to pick up a pencil he had dropped on the floor of the bus, noticed Mary's foot down on the floor, and then saw that James had his hand down her pants. Kory testified that no noises were made by either Mary or James during the incident and that no one told him, nor did he hear, that anyone saw the incident. Kory further testified that neither he nor Mary notified the driver about the incident at that time and that Mary told him not to tell anyone. Jane Doe testified in her deposition that she was not made aware of the incident until Mary complained of a problem some days or weeks later.
Baum testified in his deposition that Mary had told him of the incident involving Kenny putting his hands down her pants, but that Kenny had disembarked the bus by the time he learned of the incident. Baum also testified that he immediately told Mary's grandmother, who met Mary at the bus stop that night, of the incident. Baum testified that he did not fill out a pink slip to report the incident because he reported it to Mr. Schroeder, his supervisor, in person as soon as he got finished with his bus route. Baum further testified that he never got any report that James was involved in the incident.
Baum testified that the first he learned of the incident with James was when Mr. Schroeder mentioned to him that he needed to talk to a police officer. Baum testified that neither Mary nor Kory ever reported the incident to him, nor were there any reports from other students. Baum also testified that he never noticed Mary getting off the bus crying, looking disheveled, or looking as though she were hurt in any way in the fall of 1998. Mr. Schroeder testified in his deposition that James had been a problem student on several prior occasions. Specifically, Schroeder testified that James had been kicked off the bus for using profanity with Baum and Schroeder, had been arrested on at least one occasion while at school, and had been truant, among other things. Schroeder further testified that he did not remember receiving a report involving the incident between Mary and Kenny, but that he would not dispute Baum's memory if Baum said that he had reported such an incident between Mary and Kenny. Schroeder further testified that Baum had been involved in an accident one time where some students were misbehaving in the back of the bus while he was driving on a wet road, and he got onto the edge of the dirt, slid, and hit a tree. Schroeder testified that he counseled Baum after the accident that he needed to watch the road instead of the kids and that his first responsibility was driving the bus.
On August 8, 1999, appellee ASBA filed a motion for summary judgment, arguing that its liability insurance to FLSD, as is required under Ark.Code Ann. § 21-9-303 (Repl.1999), did not provide coverage in Mary's case because the incident in question did not arise out of the ownership, maintenance, or use of the vehicle as required under the Motor Vehicle Safety Responsibility Act, which is codified at Ark.Code Ann. § 27-19-713(b)(2) (Supp. 2001). The ASBA argued that its policy only afforded protection in cases where there had been a collision that caused injuries to a third party. The trial court denied ASBA's motion for summary judgment, concluding that the memorandum of intent provided coverage for damages "arising out of the ownership, maintenance, or use of any automobile," that "accident" was defined as an event that resulted in personal injury, and, as such, the facts alleged in the complaint might be covered by insurance provided by the ASBA. That ruling is not at issue in this appeal, but remains the subject of future litigation.
On April 25, 2001, appellees Baum, FLSD, and ADE filed a motion for summary judgment, arguing that (1) they were immune from liability for negligence, gross negligence, and reckless indifference; (2) the coverage afforded by the ADE under Ark.Code Ann. § 6-17-1113 only required coverage for acts that have not traditionally been immune, and school district employees have traditionally been immune from acts of negligence; and (3) ADE was entitled to sovereign immunity and could not be sued.
On July 17, 2001, the Garland County Circuit Court issued an order: (1) granting summary judgment to ADE and dismissing appellants' complaint against it with prejudice; (2) granting partial summary judgment to Baum and FLSD and dismissing appellants' complaint against them as to the civil liability allegations; (3) ordering the complaint as to the motor vehicle liability allegations against Baum and FLSD and as to the allegations of liability protection or coverage under the program provided by ASBA to remain pending; and (4) certifying the case for appeal pursuant to Ark. R. Civ. P. 54(b). It is from this order that appellants bring this appeal.
We have outlined our standard of review of summary-judgment cases on numerous occasions. In Short v. Westark Community College, 347 Ark. 497, 65 S.W.3d 440 (2002), we stated:
In reviewing a summary-judgment case, we need only decide if the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Aka v. Jefferson Hosp. Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001). Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable...
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