Moore by Moore v. Berkeley County School Dist., No. 2663

• Court: Court of Appeals of South Carolina
• Writing for the Court: CURETON
• Citation: 326 S.C. 584,486 S.E.2d 9
• Docket Number: No. 2663
• Decision Date: 08 April 1997
• Parties: , 118 Ed. Law Rep. 1222 Jaymes D. MOORE, a minor under the age of eighteen (18) years, by his Guardian Ad Litem, Milinda MOORE, Appellant, v. BERKELEY COUNTY SCHOOL DISTRICT, and Barbara Jean Steward, Respondents. . Heard

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486 S.E.2d 9 326 S.C. 584, 118 Ed. Law Rep. 1222 Jaymes D. MOORE, a minor under the age of eighteen (18)
years, by his Guardian Ad Litem, Milinda MOORE, Appellant,
v.
BERKELEY COUNTY SCHOOL DISTRICT, and Barbara Jean Steward,
Respondents. No. 2663. Court of Appeals of South Carolina. Heard April 8, 1997.
Decided May 12, 1997.
Rehearing Denied June 18, 1997.
Certiorari Denied Mar. 6, 1998.

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[326 S.C. 585] Alan D. Toporek, of Uricchio, Howe, Krell, Jacobson, Toporek & Thoes, Charleston, for appellant.

Ronald James Tryon and David Dubberly, both of Childs & Duff, Columbia, for respondent.

CURETON, Judge:

This is a tort action by a student against his teacher and a school district pursuant to the South Carolina Tort Claims Act. The trial court granted summary judgment in favor of the Berkeley County School District (District). The student, Jaymes D. Moore, appeals. ¹ We affirm.

[326 S.C. 586] Background

At the time of the alleged incident, Moore was a fifteen-year-old eighth grade student. Barbara Jean Steward was a teacher at Sedgefield Middle School (School) in Berkeley County. Moore attended summer school there during 1992 and Steward was his teacher. The complaint alleges Moore went to Steward's home after school on July 15, 1992 for the ostensible purpose of making up missed school work. At her home, Steward "required and induced" Moore to engage in sexual intercourse with her.

The complaint states causes of action against Steward for gross negligence, intentional infliction of emotional distress, false imprisonment, assault and battery, and invasion of privacy. With respect to the District, the complaint asserts the district was grossly negligent in (1) hiring Steward as a teacher, (2) supervising her as a teacher, and (3) supervising Moore as a student. Moore also claims the school district was grossly negligent in appointing Paul Hilson as acting principal of the School for the summer term.

The trial court granted the district's motion for summary judgment finding the district investigated Steward's background before hiring her and there was no evidence of gross negligence in the decision to hire her. ² Likewise, the court rejected Moore's claim that the district was grossly negligent in supervising Steward since the alleged act of sexual intercourse took place in her home and not upon the school premises. The court

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further concluded the district had no legal duty to supervise Moore at the time and place of his injury. Alternatively, the court held that if such duty did exist, there was no evidence the district had knowledge of Steward's sexual proclivity such that the district consciously failed to protect Moore. As to the intentional tort claims, the court concluded the district was not liable pursuant to S.C.Code Ann. § 15-78-60(17) (Supp.1996), for the intentional actions of Steward inasmuch as her actions were committed outside the scope of her employment and/or constituted [326 S.C. 587] a crime involving moral turpitude. ³ With respect to gross negligence in the appointment of Hilson as summer school principal, the court again emphasized that the act of sexual intercourse took place in Steward's home and there was no evidence Steward exhibited any conduct at school which would have led the District to reasonably anticipate she would engage in sexual activity with a student.

Discussion

I.

In determining whether any triable issues of fact are present in this case, we review the evidence in the light most favorable to Moore. City of Columbia v. ACLU, 323 S.C. 384, 475 S.E.2d 747 (1996). Accordingly, we find Paul Hilson was appointed principal of Sedgefield Middle School for the 1992 summer term after serving as assistant principal at the school during the regular school year. Hilson was appointed in spite of the fact he had been temporarily suspended in 1990 for an incident of sexual harassment against another teacher. The District required him to obtain professional counseling. In 1991, Hilson falsified some teacher evaluation information. In July of 1992, Hilson was notified he would be placed on probation for the 1992-93 school year due to "a major deficit in human relation skills with teachers and classified personnel and also a need for improvement in curriculum knowledge." Nevertheless, the district administration thought Hilson suitable for the summer job as principal. The principal of Sedgefield Middle School, Willis Sanders, instructed Hilson to regularly visit the classrooms during summer school. Although Sanders was at the school almost every day during the summer, he did not hear any complaint that Hilson was not performing his job. Other summer school teachers and office personnel testified Hilson did not monitor the classrooms as closely as they were monitored during the regular school year. A member of the office staff testified Hilson did not always report to work during the summer term.

[326 S.C. 588] Moore did not know Steward before attending summer school. However, after entering her class, he observed Steward was not "an average teacher." The students did not do any work in her class. They were rowdy and sat around talking. The radio was often playing. Steward permitted the students to smoke cigarettes in class and on one occasion Moore observed her smoking marijuana with other students during a break. Notably, Moore testified Hilson came through the...