Richard v. Washburn Pub. Sch.

• Decision Date: 15 December 2011
• Docket Number: No. 20110045.,20110045.
• Citation: 2011 ND 240,277 Ed. Law Rep. 452,809 N.W.2d 288
• Parties: Leah RICHARD, Plaintiff and Appellant, v. WASHBURN PUBLIC SCHOOLS, Defendant and Appellee.
• Court: North Dakota Supreme Court

2011 ND 240

277 Ed. Law Rep. 452

809 N.W.2d 288

Leah RICHARD, Plaintiff and Appellant,

v.WASHBURN PUBLIC SCHOOLS, Defendant and Appellee.

No. 20110045.

Supreme Court of North Dakota.

Dec. 15, 2011.

Daniel James Kelsch, Washburn, N.D., for plaintiff and appellant.

Tiffany Lynn Johnson (argued) and Gary R. Thune (on brief), Bismarck, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Leah Richard appeals from a judgment dismissing her claims for negligent hiring, supervision and retention, and assault and battery against Washburn Public Schools (“the District”). We affirm the district court's dismissal of Richard's claims for negligent hiring and assault and battery, which she does not challenge on appeal. We reverse dismissal of Richard's claims for negligent supervision and retention because the court erred in concluding those claims were barred by the exclusive remedy provisions of the Workforce Safety and Insurance Act. We affirm the judgment in part, reverse in part, and remand for further proceedings.

I

[¶ 2] In November 2001, Richard, a sixteen-year-old student at Washburn High School, began working as a part-time custodian for the District. Gary Fuchs was the head custodian and Richard's supervisor. Richard alleges that during her employment with the District, which ended in 2003, Fuchs subjected her to “inappropriate conduct ... including sexual comments and touching.” Richard explained in her deposition that Fuchs would talk “in a sexual manner to everyone sitting down, whether we were on coffee break or ... in the hallway ... whether he was speaking to me or to another individual, it was very—... just very demeaning.” The first two physical incidents involved Fuchs allegedly “putting a chokehold” on Richard. In her deposition, Richard described the incidents:

“A. Previous to February 2003 Mr. Fuchs had put his hand around my neck. I had asked for time off one time. I believe my mom had time off at the same time. And ... we had to have Ann Reisenauer fill in for us, so he didn't—he did not like that. And the second time I didn't roll up the vacuum cleaner cord the way he wanted me to. And definitely some anger issues there.

Q. Why didn't he—so you're saying he put his hands around your neck because he didn't want Ann Reisenauer to fill in for you?

....

A. I think because he had to find someone ... to fill in. And I don't remember if it was a short period of time like a short notice ... or what, but I do remember I did ask for time off. And it was the back—it was the back of the neck, and it was very—like a hard hold.”

Richard did not report these incidents to the District.

[¶ 3] The third physical incident involved Fuchs allegedly grabbing Richard and telling her to bend over. Richard testified:

“A. I would say it was February—it was a few months before that, it was February 2003 was when I was vacuuming in Holly Becker's room, her kindergarten room, because at the time she was principal and kindergarten teacher. And she had a mirror sitting on the floor by the sink. And he told me to bend over.... [H]e was behind me, so ... I was creeped out ... even more. And ... he continually told—like demanded that I bend over. Well, finally he took my neck, pushed me down by the mirror and ... said that I had black on my nose. And he was behind me.

So it's like just completely crossing the line. And ... I definitely told my mom about this.... I just—I didn't know what to do.”

Richard's mother, Connie Kelsh, reported the incident to the elementary school principal, Holly Becker. According to Kelsh, Becker said, “ ‘Well, that's just how Gary is, rough.’ ” Becker did not address the issue or relay the information to others, but told Kelsh to contact Robert Tollefson, the superintendent. Kelsh did not contact Tollefson.

[¶ 4] The fourth incident involved Fuchs allegedly putting his hands inside the front of Richard's pants and pulling her toward him. Richard testified:

“A.... [W]ell, what happened when Mr. Fuchs asked me about kissing my boyfriend, I was vacuuming in front of Mrs. Holland's room, and he came right in front of me so I turned my vacuum cleaner off. And he was standing maybe—like if that was one door, so maybe four feet, maybe, away from me. Turned off my vacuum cleaner looking at him. And he said, ‘I saw you kissing your boyfriend the other day while you were rollerblading.’ And I said ... ‘It's none of your business, so’ ... just kind of feel violated. And he then came up to me, put his hands in my pants and pulled me towards him. It wasn't an up motion like Mr. Weinmann had described. Pulled me towards him. And I think he saw the shock on my face and let go. And ... it was like what—what did that—what does that matter to you ... ? You're my employer and my supervisor. And I immediately after that went into the room with Shar because I just—I didn't know what to say. I didn't—I was completely shocked that that would happen. And he stuck around for maybe, I would say, five—five minutes, and he was acting differently. So I could tell immediately that he knew he did wrong.”

Kelsh informed Tollefson about this incident, resulting in the District ordering Fuchs to avoid contact with Richard and to participate in an improvement plan.

[¶ 5] Richard quit her job with the District in August 2003, shortly before beginning her senior year in high school. Fuchs occasionally had contact with Richard. Richard would observe Fuchs inside her classroom and in common areas within the school. Richard testified:

“A. I don't remember specifically times. I remember two incidents, though, more vividly. I was in Ms. Mayer's classroom one time for English, and I believe he was dropping boxes off. It wasn't an emergency by any means. The second time I was in study hall and he was just glaring at me.”

Richard retained an attorney, who wrote a letter informing the District of Fuch's conduct and requesting that Fuchs avoid all contact with Richard and her sister. The District agreed with the attorney's proposal and issued a written directive to Fuchs.

[¶ 6] In April 2006, Richard sued the District seeking damages based on claims of negligent hiring, supervision and retention of Fuchs, and assault and battery. Richard sought in excess of $180,000, alleging that she “has suffered and will continue to suffer remorse, humiliation, mental anguish, loss of respect of friends and family, nervousness and inability to sleep, headaches, irritability, and financial loss,” and that she “will have to undergo treatment with ... medical/mental health professionals in an attempt to correct the damage done.”

[¶ 7] The district court granted the District's motion for summary judgment dismissing Richard's claims. The court dismissed the negligent hiring claim, concluding Fuch's conduct was not foreseeable as a matter of law because Richard produced no evidence showing the District knew or should have known Fuchs would harass or physically touch co-workers. The court dismissed the assault and battery claim, concluding it was barred by the two-year statute of limitations in N.D.C.C. § 28–01–18(1). Although the court determined genuine issues of material fact existed regarding Richard's claims for negligent supervision and retention, the court dismissed those claims on the ground they were precluded by the exclusive remedy provisions of the Workforce Safety and Insurance Act, N.D.C.C. tit. 65. The court further rejected Richard's reliance on the intentional injuries exception to application of the Workforce Safety and Insurance Act under N.D.C.C. § 65–01–01.1, concluding she produced no evidence showing the District intentionally inflicted Richard's injuries.

II

[¶ 8] Richard argues the district court erred in granting summary judgment dismissing her claims for negligent supervision and retention. Richard does not challenge the court's dismissal of her claims for negligent hiring and assault and battery.

[¶ 9] We address the issues under the standards for reviewing a grant of summary judgment:

“Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.”

Loper v. Adams, 2011 ND 68, ¶ 19, 795 N.W.2d 899 (quoting Brown v. Montana–Dakota Utils., Co., 2011 ND 38, ¶ 3, 794 N.W.2d 741).

A

[¶ 10] Richard argues the district court erred in concluding her claims for negligent supervision and retention against the District were precluded by the exclusive remedy provisions of the Workforce Safety and Insurance Act, N.D.C.C. tit. 65.

[¶ 11] Section 65–01–01, N.D.C.C., declares that “for workers injured in hazardous employments, ... sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this title, and to that end, all civil actions and civil claims for relief for those personal injuries and all jurisdiction of the courts of the state over those causes are abolished except as is otherwise provided in this title.” In Trinity...