O.S. v. Kan. City Pub. Sch.

• Decision Date: 16 October 2013
• Docket Number: No. 13-0261-CV-W-DGK,13-0261-CV-W-DGK
• Parties: O.S., et al., Plaintiffs, v. KANSAS CITY PUBLIC SCHOOLS, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

O.S., et al., Plaintiffs, v. KANSAS CITY PUBLIC SCHOOLS, et al., Defendants.

No. 13-0261-CV-W-DGK

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Date: October 16, 2013

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This case arises from Defendant Daniel Roberson's ("Roberson") repeated sexual assaults on a minor Plaintiff R.S on the premises of George B. Longan French Magnet School ("Longan") during an after school supervision program coordinated by Greater K.C. LINC, Inc., ("LINC"). Because of these acts, O.S., on behalf of her child R.S., (collectively "Plaintiffs") are suing Defendants Kansas City Public Schools ("KCPS"), Kansas City School Board ("KCSB"), Longan, LINC, and Roberson. Now before the Court is Defendants' KCPS, KCSB, and Longan's (collectively "Defendants") motion to dismiss Plaintiffs' counts V, VII, VIII, IX, X, XI, and XII for failure to state a claim. The Defendants' motion is GRANTED, because (1) sovereign immunity bars Counts VII, VIII, IX, X, XI, and XII; and (2) the statute relied upon in Count V applies only to non-perpetrator defendants.

Background

The complaint alleges the following facts. Between 2005 and 2009, R.S. attended George B. Longan French Magnet School and participated in LINC's aftercare program. During this period of time, LINC had a contract with KCPS and Longan to provide aftercare services on Longan's campus. LINC hired Defendant Roberson and others to supervise the children. Whileemployed by LINC in 2005, Defendant Roberson began sexually molesting R.S. on the Longan campus during the aftercare program and off the school grounds during school hours.

In October 2008, parents of another student who participated in the aftercare program notified KCPS and Longan officials that Defendant Roberson sexually molested their child. In response, KCPS discussed the allegations with the student and his or her parents and also interviewed Defendant Roberson about the allegations. However, neither KCPS nor LINC advised the parents of other children about the sexual abuse allegations.

Following the investigation, Defendant Roberson remained in his position with LINC. Eventually, Defendant Roberson's molestation of R.S. increased in both frequency and degree of physicality. In order to prevent R.S. from revealing the abuse, Defendant Roberson threatened R.S. with physical violence. Throughout the period of molestation, Defendant knew he had HIV and that he was potentially subjecting R.S. to transmission of the virus.

After becoming aware of the abuse, O.S., R.S.'s parent, filed suit on March 3, 2013, against KCPS, KCSB, Longan, LINC, and Roberson. Plaintiffs' complaint raises fifteen counts against these defendants either collectively or separately. KCPS, KCSB, and Longan (collectively "Defendants") filed a joint-motion to dismiss Counts V (Violations of Missouri Childhood Sexual Abuse Statute), VII (Common Law Premises Liability), VIII (Common Law Failure to Investigate Allegations of Sexual Abuse), IX (Common Law Breach of Fiduciary Duty), X (Common Law Failure to Supervise Children), XI (Common Law Negligent Supervision and Retention of Defendant Roberson), and XII (Common Law Negligent Infliction of Emotional Distress).

Standard

A court must dismiss a complaint if it fails to state a claim on which relief can be granted. Fed R. Civ. P. 12(b)(6). In reviewing the adequacy of a complaint, the court assumes that the factual allegations in the complaint are true and construes them in the light most favorable to the plaintiff. Data Mfg. Inc. v. UPS, Inc., 557 F.3d 849, 851 (8th Cir. 2009). To survive a 12(b)(6) motion to dismiss, the complaint must do more than recite the bare elements of a cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009). Rather, it must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While a complaint ... does not need detailed factual allegations," a plaintiff must provide the grounds of his entitlement with more than mere "labels and conclusions," or "a formulaic recitation of the elements of a cause of action...." Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008) (quoting Twombly, 550 U.S. at 545 (internal citations omitted)). A complaint that alleges only "naked assertion[s] devoid of 'further factual enhancement'" will not survive a motion to dismiss. Twombly, 550 U.S. at 557.

Additionally, in ruling on a 12(b)(6) motion to dismiss, the court is not limited to the four corners of the complaint. Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir. 2011). The court may consider "the pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record." Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)).

Analysis

Defendants claim that Counts V, VII, VIII, IX, X, XI, and XII, which all raise claims against the school or school district, are barred under the doctrine of sovereign immunity. In thealternative, Defendants argue that (1) Count V should be dismissed because the Missouri Childhood Sexual Abuse statute, which the cause of action derives from, only applies to perpetrators of the sexual abuse; and (2) Count IX should be dismissed because Defendants did not owe Plaintiffs a fiduciary duty.

A. Sovereign immunity requires dismissal of Counts VII, VIII, IX, X, XI, and XII.

All Counts at issue in the motion to dismiss arise under either Missouri statutory or common law. In Missouri, public entities such as schools, school districts, and school boards are immune from most tort claims. Patterson v. Meramec, 864 S.W.2d 14 (1993); Mo. Rev. Stat. § 537.600.1. However, the Missouri legislature and courts have grafted several exceptions to the general tort immunity principle which allow lawsuits against public entities in the following situations:

(1) Where a plaintiff's injury arises from a public employee's negligent operation of a motor vehicle in the course of his employment; (2) where the injury is caused by the dangerous condition of the municipality's property; (3) where the injury is caused by the municipality performing a proprietary function as opposed to a governmental function; and (4) to the extent the municipality has procured insurance, thereby waiving sovereign immunity up to but not beyond the policy limit and only for acts covered by the policy.

Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo. Ct. App. 2009) (internal citations omitted).

Here, Plaintiffs concede that sovereign immunity generally bars the tort claims mentioned in the motion to dismiss. Plaintiffs, however, contend that the statutory exception for dangerous conditions applies to this case. Defendants counter that none of Plaintiffs' claims in these counts satisfy the dangerous condition exception. The Court holds that sovereign immunity applies toCounts VII, VIII, IX, X, XI, and XII, and, thus these claims are dismissed against KCPS, KCSB, and Longan.¹

To begin, the claims underlying these Counts are tort claims. See, e.g., S & P Props., Inc. v. City of Univ. City, 178 S.W. 3d 579, 584 (App. Ct. App. 2005) (noting that sovereign immunity only applies to "tort actions" and that plaintiffs pleading of unjust enrichment precluded the application of sovereign immunity). Plaintiffs pled Counts VII, VIII, X, XI, and XII as simple negligence causes of action respectively including claims for: premises liability, failure to investigate abuse claims, failure to supervise children, negligent retention, and negligent infliction of emotional distress. Since these claims derive from traditional common law negligence, sovereign immunity applies to these Counts. See Doe v. The Special Sch. Dist. Of St. Louis Cnty., 637 F. Supp. 1138, 1148-49 (E.D. Mo. 1986) (holding that sovereign immunity applied to negligence claim against school district for failure to supervise employee). Similarly, Missouri law also recognizes breach of a fiduciary duty as a common law tort claim when pled as such by the plaintiff. See W. Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 15 (Mo. 2012) ("When breach of fiduciary duty is asserted as a tort claim, as here, the proponent must establish that a fiduciary duty existed between it and the defending party, that the defending party breached the duty, and that the breach caused the proponent to suffer harm.") (internal quotations omitted). The allegations in Count IX track the elements required to state a tort claim for breach of a fiduciary duty, therefore sovereign immunity bars this claim. See Joske Corp. v.Kirkwood Sch. Dist. R-7, 903 F.2d 1199, 1201-02 (8th Cir. 1990) (holding that sovereign immunity applied to a performance bond claim against the school district because the claim "sounds in tort").

If a claim falls within the sovereign immunity bar, a plaintiff bears the burden of establishing that the dangerous condition exception applies. See Martin v. City of Wash., 848 S.W.2d 487, 491 (Mo. 1993). Courts in Missouri, however, narrowly construe this waiver provision. Boever v. Special Sch. Dist. of St. Louis Cnty., 296 S.W.3d 487, 493 (Mo. Ct. App. 2009). Under Missouri law, a dangerous condition arises either because of "defects in the physical condition of the public entity's property" or "the positioning of various items of property." Cain v. Mo. Highways & Transp. Comm'n., 239 S.W.3d 590, 594 (Mo. 2007) (internal quotations and citations omitted). Therefore, to satisfy this definition, the dangerous condition must be physical in nature. Boever, 296 S.W.3d at 493. "Failure to perform an intangible act, whether it be failure to supervise or warn[,] cannot constitute a dangerous condition of the property for purposes of waiving sovereign immunity." Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. 2002).

Plaintiffs failed...