Jane Doe v. Logan Cnty. Bd. of Educ.

• Decision Date: 04 June 2019
• Docket Number: No. 18-0086,18-0086
• Citation: 829 S.E.2d 45
• Court: West Virginia Supreme Court
• Parties: Jane DOE, Plaintiff Below, Petitioner v. LOGAN COUNTY BOARD OF EDUCATION, Defendant Below, Respondent

829 S.E.2d 45

Jane DOE, Plaintiff Below, Petitioner

v.LOGAN COUNTY BOARD OF EDUCATION, Defendant Below, Respondent

No. 18-0086

Supreme Court of Appeals of West Virginia.

Submitted: March 12, 2019

Filed: June 4, 2019

Steven S. Wolfe, Esq., J. Christopher White, Esq., Wolfe, White & Associates, Logan, West Virginia, Counsel for Petitioner

Duane J. Rugger II, Esq., Jacob D. Layne, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Counsel for Respondent

HUTCHISON, Justice:

The petitioner "Jane Doe,"¹ plaintiff below, appeals the Order Granting Defendants’ Motion to Dismiss entered by the Circuit Court of Logan County on January 3, 2018. In that order, the circuit court dismissed all counts in Jane Doe’s civil action against the respondent Logan County Board of Education ("Board"), a co-defendant below. On appeal, Jane Doe argues that the circuit court erroneously dismissed her negligence claims based upon the court’s conclusion that she had failed to plead sufficient facts in her Complaint to state a claim for relief. She also contends that the circuit court failed to address her claim regarding breach of fiduciary duty. The Board argues in support of the circuit court’s dismissal order.

After considering the parties’ written and oral arguments, as well as the record on appeal and the applicable law, we find that the circuit court erroneously dismissed two counts in Jane Doe’s Complaint that asserted the Board and its employees were negligent. However, we find no merit to her contention that the circuit court failed to consider a fiduciary duty claim. Furthermore, Jane Doe has not appealed the other rulings in the circuit court’s dismissal order. Accordingly, we reverse, in part, and affirm, in part, the circuit court’s dismissal order, and remand this case to the circuit court for further proceedings consistent with this opinion.

I. Facts and Procedural Background

According to the Complaint, Jane Doe was a seventeen-year-old high school student attending a vocational center operated by the Board during the 2014-2015 school year. Jane Doe took a carpentry class at the vocational center taught by the Board’s employee, John Thomas Cain ("Cain"). The Complaint alleges escalating sexual behavior that this teacher inflicted upon her during the school year, including remarking during class that her appearance was "sexy," repeatedly displaying photos of his genitalia to her, repeatedly requesting nude photos of her, following her into the bathroom in his classroom, and pulling up her shirt to expose her breasts. Jane Doe asserted that in January or February 2015, Cain forced her to perform oral sex on him. She contended that in March or April 2015, Cain digitally penetrated her vagina while holding his other hand over her mouth, only stopping when another student walked by. Cain’s acts of misconduct occurred in the classroom, and Jane Doe asserted that other students questioned her about what had occurred. Jane Doe further alleged that when she halted Cain’s sexual advancements, he threatened her with physical violence.²

Jane Doe’s lawsuit names both Cain and the Board as defendants. The instant appeal only concerns claims brought against the Board.³ The Complaint’s claims against the Board may be categorized into two groups: claims asserting vicarious liability for Cain’s sexual misconduct against this student because the Board was Cain’s employer; and claims alleging the Board is directly liable because it and its other employees (employees other than Cain) were negligent in hiring, retaining, supervising, monitoring, and/or training Cain. For this latter category, Jane Doe asserted the following negligence in Count Three of her Complaint:

14. Upon information and belief, the Defendant Board was negligent in several aspects, including but not limited to the following facts:

a. failing to properly interview, evaluate and screen Defendant Cain prior to hiring; and

b. failing to properly supervise and monitor Defendant Cain.

15. Defendant Board had an affirmative duty to properly investigate the background of its employees prior to providing employment. Defendant Board breached said duty by negligently hiring Defendant Cain thereby directly introducing a sexual predator to countless children and students, including but not limited to Jane Doe.

16. As a direct and proximate result of the Defendant’s aforesaid actions, Jane Doe has suffered and will continue to suffer damages in an amount to be proven at trial.

Count Six of the Complaint alleged the following negligence:

27. Teachers and administrators employed by Defendant Board were negligent in several aspects, including, but not limited to the following affirmative acts:

a. multiple educators observed Defendant Cain interact with Jane Doe in ways that were contrary to acceptable school standards, but none even initiated a discussion with an administrator, reported suspicious conduct to an administrator, or even made an anonymous report that the relationship between Jane Doe and Defendant Cain should be investigated.

b. Defendant Cain received improper, deficient, and negligent training about interactions with students, contributing to his casual seduction of Jane Doe to whom he and the Defendant Board had a responsibility regarding her well-being and safety.

The Board filed a motion to dismiss all of the claims against it pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Rule 12(b)(6) permits motions to dismiss all or part of a complaint for the "failure to state a claim upon which relief can be granted." With respect to the vicarious liability claims where the Board was sued for Cain’s sexual misconduct, the Board argued that those were intentional criminal acts outside the scope of Cain’s employment and thus the Board was immune from suit pursuant to the Governmental Tort Claims and Insurance Reform Act ("Tort Claims Act"). See W.Va. Code §§ 29-12A-1 to - 18. The circuit court agreed and dismissed Jane Doe’s vicarious liability claims. The circuit court also dismissed a claim for punitive damages. Jane Doe does not appeal these rulings, and these rulings are not disturbed on appeal.

As to the claims of negligence against the Board and its other employees, the Board argued that Jane Doe asserted nothing but conclusory allegations without including a sufficient factual basis to state a claim for relief. The circuit court agreed and also dismissed these claims. All claims against the Board were dismissed with prejudice. Jane Doe now appeals from the circuit court’s January 3, 2018, order dismissing her negligence claims against the Board.

II. Standard of Review

On appeal, Jane Doe challenges the dismissal of some of the counts in her civil complaint. Our standard of review is plenary: "Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo ." Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. , 194 W.Va. 770, 461 S.E.2d 516 (1995). We recently elaborated on the meaning of this standard of review in Gastar Exploration Inc. v. Rine , 239 W.Va. 792, 806 S.E.2d 448 (2017) :

The term "de novo " means "Anew; afresh; a second time." We have often used the term "de novo " in connection with the term "plenary." ... Perhaps more instructive for our present purposes is the definition of the term "plenary," which means "[f]ull, entire, complete, absolute, perfect, unqualified." We therefore give a new, complete and unqualified review to the parties’ arguments and the record before the circuit court.

Id. at 798, 806 S.E.2d at 454 (internal quotation marks, footnotes, and citations omitted). With this in mind, we consider the parties’ arguments.

III. Discussion

In her first assignment of error, Jane Doe asserts that the circuit court erroneously dismissed her claims against the Board for negligent supervision, which she indicates includes aspects of negligent hiring, retention, training, monitoring, and discipline. These negligence claims are encompassed within Counts Three and Six of her Complaint, quoted supra . Although the circuit court found that these claims were merely conclusory allegations, Jane Doe contends that her Complaint is sufficient. She argues that the Complaint sets forth instances where other Board employees knew, or should have known, of Cain’s misconduct against her, but those employees failed to intervene, report the misconduct, or take any other action. Moreover, she contends that the specifics of what the Board’s employees knew, and when they knew it, require further investigation through discovery.

In response, the Board argues that there are no facts alleged in the Complaint to indicate how it or its employees were negligent. The Board argues that the only reference in Jane Doe’s Complaint to the action or inaction of any specific Board employee (other than Cain) is a factual allegation concerning a janitor, but this allegation fails to assert any wrongdoing by the janitor or the Board. Specifically, Jane Doe’s Complaint alleges:

10. While working on an outdoor project involving planting flowers and putting down mulch, Jane Doe went to the restroom inside Defendant Cain’s classroom and he [Cain] followed her into the restroom and was waiting outside the stall when she emerged—stating that he had come to talk. When Jane Doe left the restroom, she crossed paths with a janitor who did not intervene.

The Board argues that this paragraph fails to allege that the janitor also observed Cain enter or exit the restroom with Jane Doe. The Board contends that it may have statutory immunity from the negligence claims, thus, to survive dismissal, Jane Doe’s Complaint must include specific allegations. Both the Board’s brief and the circuit court’s order rely heavily upon language in Hutchison v. City of Huntington : "local government units should be entitled to ... immunity under W.Va. Code, 29-12A-5(a), unless it is shown by specific allegations that the immunity does not apply."...