Osborne by and through Powell v. Yadkin Valley Economic Development District, Incorporated
| Decision Date | 07 September 2021 |
| Docket Number | No. COA20-485,COA20-485 |
| Citation | 865 S.E.2d 307 |
| Parties | Lauren OSBORNE, BY AND THROUGH her Guardian, Michelle Ann POWELL and Michelle Ann Powell, Plaintiffs, v. YADKIN VALLEY ECONOMIC DEVELOPMENT DISTRICT, INCORPORATED; Stokes County Board of Education; Stokes County Schools; Sonya M. Cox; Patricia M. Messick; Rebecca Boles; William Hart ; Jamie Yontz; Brad Lankford; Ronnie Mendenhall; Jeff Cockerham, Defendants. |
| Court | North Carolina Court of Appeals |
Hendrick Bryant Nerhood Sanders & Otis, LLP, by W. Kirk Sanders, Winston-Salem, and Joshua P. Dearman, for Plaintiffs-Appellants.
Tharrington Smith, LLP, Raleigh, by Deborah R. Stagner, for Stokes County Board of Education, Defendant-Appellee.
¶ 1 Lauren Osborne ("Lauren") and Michelle Ann Powell ("Ms. Powell"), Lauren's mother, (collectively, "Plaintiffs") appeal from an order granting summary judgment regarding Plaintiffs’ negligence claim and Title IX of the Education Amendments of 1972 ("Title IX") claim in favor of the Stokes County Board of Education (the "Board"), and an order dismissing Plaintiffs’ claims under 42 U.S.C. § 1983 et seq. (" Section 1983"). After careful review of the record and applicable law, we affirm the order of the trial court.
¶ 2 Lauren was a twenty-year-old special-needs student who attended West Stokes High School. Lauren is severely disabled with an IQ of forty-one and the functional capacity of a first-grade student. Testimony from Lauren's teacher, nurse, assistant, principal, yellow bus driver, and the superintendent demonstrates Lauren was vulnerable, immature, and susceptible to exploitation. In addition to her mental disability
, Lauren suffers from severe diabetes. Her condition requires her to have an insulin pump, emergency medical plan, and monitoring by adults throughout the day as she has needed transportation to the hospital for medical care on several occasions. Lauren also required constant adult supervision at school to prevent bullying by other students.
¶ 3 Every special-needs student has their own Individualized Education Plan ("IEP") prepared by an IEP team that outlines that student's learning plan. Jane Wettach, Parents’ Guide to Special Education in North Carolina 12 (2017). https://law.duke.edu/childedlaw/docs/Parents% 27_guide.pdf. The Board oversees and administers public schools in Stokes County, North Carolina. Entities, like the Board, are required to give parents advance notice of a student's annual IEP development meeting. The Board is also required to encourage parents to participate in the development of their student's learning plans. Throughout her enrollment in Stokes County Schools ("SCS"), Lauren had an IEP, and she received transportation to her assigned school as a "related service" to her IEP, under the federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Prior to November 2013, Lauren rode to West Stokes High School on a yellow school bus owned by SCS. Lauren's bus exclusively transported special-needs students and had an assigned bus monitor1 because other students on the bus required a monitor as part of their IEPs. This bus was known as an exceptional children's ("EC") bus.
¶ 4 In 2013, many special-needs students in Stokes County were assigned to specialized classes offered at schools other than their districted schools, and their bus rides could be exceptionally long. To address the long bus rides for students and to promote the efficiency of its bus fleet, SCS Transportation Director Brad Lankford ("Mr. Lankford") recommended that the Board explore using contracted transportation for exceptional students. Mr. Lankford investigated the cost of contracting transportation services. In August 2013, the Board contracted with Yadkin Valley Economic Development District, Inc. ("YVEDDI") to provide transportation for some of the special-needs students enrolled in SCS.
¶ 5 YVEDDI is a non-profit corporation that has provided transportation services for several neighboring school districts for decades. YVEDDI also provides transportation services for Head Start2 and sheltered workshop programs for adults with disabilities. Before recommending that YVEDDI provide transportation services for SCS students, Mr. Lankford talked to transportation directors in surrounding counties to get references and an idea of the cost and type of services YVEDDI provided. Mr. Lankford also requested qualification and safety information from YVEDDI's transportation director, Jeff Cockerham ("Mr. Cockerham"). YVEDDI had a safety plan in place which included driver hiring procedures and qualifications, drug testing, vehicle maintenance, and security. Before the Board entered into its initial contract with YVEDDI, Mr. Cockerham provided to Mr. Lankford the following: YVEDDI's safety plan; minimum qualifications for YVEDDI drivers; training program for YVEDDI drivers; YVEDDI's drug and alcohol compliance documentation; preventative maintenance schedule; and certificate of liability insurance. YVEDDI offered to quote its bid with safety monitors on board the vehicles, but the Board declined to have YVEDDI include safety monitors in the bid. The State does not reimburse school systems for safety monitors.
¶ 6 The Board's contract with YVEDDI required the transportation company to comply with its approved safety plan, provide a well-trained driver, conduct pre-employment criminal background checks and drug testing of drivers, and to conduct random drug testing according to North Carolina Department of Transportation ("NCDOT") regulations. YVEDDI began transporting some SCS special-needs students to and from school in August 2013, at the start of the 2013-2014 school year. The Board entered into subsequent contracts with YVEDDI to transport special-needs students to and from school in the 2014-2015 and 2015-2016 school years. The YVEDDI vans that transported SCS students were equipped with safety equipment including first aid kits, NCDOT-mandated video cameras, and "push to talk phones."
¶ 7 Lauren was accustomed to riding a yellow school bus with other special-needs students and a safety monitor for transportation to West Stokes High School. Starting in November 2013, the Board changed Lauren's transportation from an exceptional students school bus with a safety monitor to a YVEDDI van that did not have a safety monitor. The school notified Lauren's mother of the change to Lauren's transportation service only after the arrangements were made. According to Mr. Lankford's deposition testimony, Lauren's change from an exceptional students school bus with a safety monitor to a YVEDDI van without one required an IEP team meeting. Additionally, Lauren's teacher testified that transportation was not discussed in Lauren's annual IEP meeting, and furthermore, had it been discussed during the meeting, he would have recommended a safety monitor for his special-needs students like Lauren.
¶ 8 During the 2014-2015 and 2015-2016 school years, Lauren was transported in a YVEDDI van driven by Robert King ("King"), a YVEDDI employee. King held a valid North Carolina driver's license that met YVEDDI's license requirements. King completed YVEDDI's application, screening, and driver training required under YVEDDI's safety plan. King had no prior criminal record and received both pre-employment and quarterly criminal background checks. King was drug tested and received forty hours of classroom and on-the-job driver training that met NCDOT standards. King was trained on interacting with disabled passengers; sensitivity and sexual harassment; defensive driving; bloodborne pathogens; and first aid and CPR. King was also informed he was not supposed to touch the students he was transporting.
¶ 9 On two separate days in December 2015, while transporting Lauren and other students, King stopped the YVEDDI van multiple times and sexually assaulted Lauren. The YVEDDI van was equipped with video cameras, and video evidence reveals King sexually assaulted Lauren twenty-one times by groping and digitally penetrating her. Though Lauren was twenty years old, she only had the functional capacity of a first-grade student and lacked the capability to comprehend and consent to the sexual acts committed against her. Specifically, Lauren lacked the communication skills to tell Ms. Powell why she suffered from anal bleeding resulting from the sexual assaults.
¶ 10 A Stokes County resident was concerned about the operation of the van and reported King's driving to YVEDDI, which prompted the company to review the video footage on Lauren's van. YVEDDI discovered King's inappropriate actions against Lauren and immediately reported King's actions to law enforcement and terminated his contract. YVEDDI did not notify the Board of the assaults, King's arrest, or King's termination. School officials first learned about the sexual assaults from Lauren's mother, Ms. Powell, after she was contacted by law enforcement following King's arrest. When the Board's superintendent, assistant superintendent, Exceptional Childrens director, transportation director, and the West Stokes High School principal all learned of the sexual assaults, they did not investigate for other potential sexual assaults against students, draft a report on Lauren's sexual abuse, or offer post-abuse counseling. The Board's policies require all verified sexual assault cases to be investigated and reported to the State Board of Education. The Board also requires written documentation of all reports of sexual assaults and requires the school system's responses to be maintained. The Board did not report Lauren's sexual assaults to the State Board of Education as required by its standard procedure, nor did it offer an explanation as to why it did not follow its standard procedure.
¶ 11 On December 4, 2018, Plaintiffs filed a complaint against the Board, the Board's individual school board members and staff, YVEDDI, Mr. Cockerham, and SCS. Plaintiffs asserted claims...
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