Stopford v. Milton Town Sch. Dist.

• Decision Date: 16 November 2018
• Docket Number: No. 17-398,17-398
• Citation: 202 A.3d 973
• Parties: Tracy STOPFORD, Individually, and as Administrator of the Estate of Jordan Preavy and Sean Preavy v. MILTON TOWN SCHOOL DISTRICT and Milton Town School Board et al.
• Court: Vermont Supreme Court

202 A.3d 973

Tracy STOPFORD, Individually, and as Administrator of the Estate of Jordan Preavy and Sean Preavy

v.MILTON TOWN SCHOOL DISTRICT and Milton Town School Board et al.

No. 17-398

Supreme Court of Vermont.

April Term, 2018

November 16, 2018

Reargument Denied December 10, 2018

Robert Appel, Burlington, for Plaintiffs-Appellants.

Pietro J. Lynn and Adrienne Shea of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendants-Appellees.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

CARROLL, J.

¶ 1. Plaintiffs appeal from the trial court's order granting defendants' motion for summary judgment on their negligence claims. Plaintiffs are Jordan Preavy's mother, Tracy Stopford, in her individual capacity and as administrator of his estate, and his father, Sean Preavy. They allege that their son took his own life as a result of being assaulted by some of his teammates on the Milton High School football team, which, according to plaintiffs, the school negligently failed to prevent. On appeal, plaintiffs argue that the court did not properly apply the summary judgment standard nor the appropriate duty of care and that it erred when it concluded that plaintiffs failed to prove that the assault was foreseeable and that it was the proximate cause of Jordan's suicide.¹ In addition, plaintiffs argue that the court improperly imposed a monetary sanction on their attorney after finding that he engaged in a prohibited ex parte communication with defendants' expert witness. We affirm.

¶ 2. In 2009, Milton High School administrators learned that students at the school, including football players, were playing a game the students called "no homo." The game entailed a student complimenting another same-sex student and then immediately stating "no homo," apparently to signify that the speaker was not a homosexual. In November of 2009, the football coach told the members of the team to stop playing the game and then held a team meeting after learning that some members of the team ignored his request. He informed the team that there would be dire consequences if he heard that the team continued to play the game. The school's athletic director wrote a letter to parents and explained that the school was "looking into instances of verbal harassment and otherwise inappropriate conversations and behaviors" by teams at the school. He scheduled another team meeting and notified parents of the meeting. The coach and athletic director then instituted a "Positive Corrective Action Plan" that included placing the football team on behavioral probation for the 2010 season. After this, school officials did not witness or receive reports of football players playing the "no homo" game or engaging in any other incidents of verbal or physical harassment—or even any other inappropriate behavior—until Spring 2013, many months after Jordan's death.

¶ 3. Jordan Preavy transferred to Milton High School in the fall of 2011 from Essex High School. He joined the football team and attended a team dinner on school grounds in August 2011. During this event, while the team had congregated on the soccer field and was separated from the adults attending the dinner, a member of the team held Jordan down while another assaulted him with a broomstick by jabbing it at his buttocks through his clothing.² Jordan did not tell his parents about the incident nor make a report to the school. In August 2012, Jordan stopped playing football due to a conflict with his lacrosse schedule. On August 28, 2012, he took his own life.

¶ 4. In the spring of 2013, a teacher at the school learned about the 2011 assault from his son and reported it to school administrators. This was the first time the school administration was notified of the incident. The Chittenden Unit for Special Investigations (CUSI) began an investigation into the assault and interviewed several members of the football team. Interviewees described some football team members' ongoing practices of exposing their genitals to other players, pretending to "hump" teammates, and shoving their exposed genitals into other players. One member of the team told investigators that he decided to discontinue playing football so as not to be associated with this behavior. Another interviewee "had always heard about" similar incidents prior to joining the team in 2009. Some of these behaviors occurred in the "Blockhouse," a former storage structure which was being used by the football team as a locker room; it also housed an office for the coaches. The CUSI investigation culminated in criminal charges against two members of the football team and subsequent convictions for their roles in the assault on Jordan.

¶ 5. Plaintiff Stopford, in her capacity as the administratrix of her son's estate, originally brought claims of negligence and violation of the Vermont Public Accommodations Act (VPAA) against Milton Town School District, Milton Town School Board, Milton High School Board, Milton Town School District Superintendent John Barone, Sr., and Milton High School Principal Anne Blake in their official capacities. In addition, plaintiffs Stopford and Sean Preavy, in their individual capacities, brought a claim for loss of parental consortium against the same defendants. Defendants filed a motion for judgment on the pleadings seeking dismissal of the loss of consortium claims and the claims against Barone and Blake, arguing they were barred by the statute of limitations. The trial court granted the motion, and plaintiffs have not appealed this ruling. The negligence and VPAA claims against Milton Town School District, Milton Town School Board, and Milton High School Board remained.³

¶ 6. Defendants then filed a motion for summary judgment, seeking dismissal of both remaining claims.⁴ Defendants asserted that the undisputed facts did not support plaintiffs’ negligence claim. Specifically, defendants argued that plaintiffs were unable to prove that defendants breached a duty of care owed to Jordan. Defendants contended that they owed Jordan the duty of ordinary care, pursuant to 16 V.S.A. § 834(a), and that they did not owe a duty to protect Jordan from an assault by team members because this was not foreseeable. In general, this argument rested on the lack of evidence that Jordan had been the subject of harassment prior to the 2011 incident, and that he had never reported any harassment to the school. And, defendants argued, the nature of the victimization suffered by Jordan during the assault involved physical assault, rather than verbal harassment, and thus was unlike and more severe than the one ritual conducted by members of the football team that the school was aware of (the "no homo" game).

¶ 7. Plaintiffs opposed defendants’ motion for summary judgment, asserting that, even though § 834(a) sets out a duty of ordinary care under these circumstances, § 834(b), which dictates that school districts "do not owe their students a duty of immediate supervision at all times and under all circumstances," did not narrow the common law duty of care owed by schools to their students. According to plaintiffs, claims grounded in negligent supervision of students only require a showing that an unreasonable risk was foreseeable to the school. Liability is not further limited by § 834(b). Finally, plaintiffs contended that foreseeability is a jury issue and that testimony by plaintiffs' two expert witnesses would establish for the jury that, given the high number of incidents of school hazing nationwide, particularly by athletic teams, Jordan's 2011 assault was foreseeable based upon all the information Milton High School had available to it at that time.

¶ 8. Citing Edson v. Barre Supervisory Union #61, the trial court held that Milton High School owed Jordan a duty of ordinary care to prevent him from being exposed to an unreasonable, foreseeable risk.

2007 VT 62, ¶ 10, 182 Vt. 157, 933 A.2d 200. It also concluded that the school had no prior notice of physical harassment by football team members, nor was it aware of Jordan or any other member of the team being harassed by the perpetrators of the assault or anyone else on the team. The court rejected plaintiffs' argument that the school's knowledge of the "no homo" game put it on notice such that the broomstick assault was foreseeable, differentiating between a nonphysical game and a physical attack and noting that the "no homo" game had been discontinued several years prior to Jordan's enrollment. The court ultimately concluded that there was insufficient evidence that the assault was foreseeable, and therefore the school did not have a duty to protect Jordan from it. The court accordingly granted defendants' motion for summary judgment on this claim.

¶ 9. During the discovery process, defendants filed a motion for sanctions alleging that plaintiffs' counsel engaged in ex parte contact with defendants' expert witness. The trial court granted the motion, finding that counsel had acted improperly when he contacted the expert to inquire about scheduling a deposition, and the costs associated with it, without following the customary procedure of going through opposing counsel. The court emphasized that the improper communication resulted in counsel "glean[ing] information that served as the basis for [plaintiffs'] subsequently filed motion to strike" and that defendants were then forced to respond. Ultimately, the court concluded that plaintiffs' counsel acted in bad faith and ordered him to compensate defendants for fees associated with handling and preparing their opposition to the motion to strike.

¶ 10. On appeal, plaintiffs argue that, in ruling on defendants' motion for summary judgment, the trial court failed to give plaintiffs the benefit of all reasonable doubts and inferences as required by Vermont Rule of Civil Procedure 56. Additionally, plaintiffs submit that under these circumstances, Milton High School owed Jordan a heightened duty of care but they also argue in...