Ward v. Barnes

• Decision Date: 29 February 2008
• Docket Number: Civil Action No. 05-1850 (JBS).
• Parties: Michael J. WARD, et al., Plaintiffs, v. Walter F. BARNES, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

545 F.Supp.2d 400

Michael J. WARD, et al., Plaintiffs, v. Walter F. BARNES, et al., Defendants.

Civil Action No. 05-1850 (JBS).

United States District Court, D. New Jersey.

February 29, 2008.

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Diana Lynn Moro, Esq., Mark J. Hill, Esq., Mark J. Hill & Associates, Moorestown, NJ, for Plaintiffs Michael, Barbara and John Ward.

Arnold Malcolm Mellk, Esq., Wills, O'Neill & Mellk, Princeton, NJ, F. Michael Daily, Jr., Esq., Westmont, NJ, for Defendant Walter Barnes.

Patrick J. Madden, Esq., Madden & Madden, PA, Haddonfield, NJ, for Defendants James Gallagher, David Tannenbaum, Sterling High School District, Sterling High School District Board of Education, and Jack McCulley.

Lee Harris Eckell, Esq., Post Schell, PC, Princeton, NJ, for Defendants Steven E. Gismonde, Sr. and Jane Gismonde.

OPINION

SIMANDLE, District Judge.

                TABLE OF CONTENTS
                I.  INTRODUCTION .........................................................404
                 II.  FACTS ................................................................405
                III.  MOTIONS FOR SUMMARY JUDGMENT .........................................407
                      A.  Standard .........................................................407
                      B.  Motion by Gismonde Parents .......................................408
                      C.  Motion by Barnes .................................................411
                          1. Count Six: Battery ...........................................411
                          2. Count Seven: New Jersey Constitutional Claim .................411
                          3. Count Eight: Intentional Infliction of Emotional Distress ....412
                          4. Count Nine: Negligence Per Se ................................414
                          5. Count Ten: Negligence ........................................415
                

                6. Count Twenty-four: Economic Loss by the Wards ................416
                          7. Damages for Pain and Suffering ...............................417
                          8. Punitive Damages .............................................418
                      D.  Motion by the Sterling Defendants ................................419
                          1. Whether the Sterling Defendants can be Liable in Tort for
                               Barnes's Actions ............................................420
                          2. Direct Negligence Claims Against Sterling Defendants .........421
                          3. Section 1983 Claims Against Sterling Defendants ..............422
                          4. IDEA Claims ..................................................424
                      E.  Plaintiffs' Motion for Summary Judgment ..........................425
                          1. No Basis for Claims ..........................................425
                          2. Battery ......................................................425
                          3. Negligence ...................................................425
                 IV.  CONCLUSION ...........................................................426
                

I. INTRODUCTION

Plaintiff Michael Ward, a student with cerebral palsy, was allegedly assaulted by fellow students in his high school gym class in 2002 at the direction of his teacher. Michael Ward alleges school authorities did nothing to prevent this and other assaults. Michael and his parents bring claims under federal and state law against the students, the teacher, and various school district employees and officials in the Sterling High School District, seeking money damages.

Before the Court are the motions for summary judgment by Defendants Jane Gismonde and Steven Gismonde, Sr. ("the Gismonde parents" or "the Gismondes") [Docket Item 72]; Defendant Walter Barnes ("Barnes") [Docket Item 73]; Defendants James Gallagher, Jack McCulley, Sterling High School District Board of Education, Sterling High School District and David Tannenbaum ("the Sterling Defendants") [Docket Item 74]; and by Plaintiffs Barbara Ward, John Ward, and Michael J. Ward ("the Wards" or "Plaintiffs") [Docket Item 75]. The Court heard oral argument and reserved decision. For the reasons explained below, the Court shall grant the motions in part and deny them in part.

Plaintiffs' Amended Complaint contains twenty-four counts of allegations against the defendants.

Counts One through Four allege claims by Michael Ward against Walter Barnes in his capacity as an employee of or agent for Sterling High School; in other words, they assert claims against Sterling High School Board of Education and Sterling High School District for Barnes's conduct under the theory of respondeat superior.

Counts Six through Ten are claims by Michael Ward against Barnes in his individual capacity: Count Six alleges battery, Count Seven alleges a New Jersey Constitutional claim, Count Eight alleges intentional infliction of emotional distress, Count Nine alleges negligence per se, and Count Ten alleges negligence.

Counts Eleven and Twelve are claims by Michael Ward against Sterling High School District Board of Education. Count Eleven alleges a claim pursuant to 42 U.S.C. § 1983 that "Plaintiff Michael Ward has been deprived by Defendant Sterling High School District Board of Education, while acting under color of state law, of his rights, privileges and immunities secured by the Constitution and laws of the United States of America and the State of New Jersey; specifically, his liberty interest in bodily integrity and freedom from fear, intimidation, beatings and physical attacks perpetrated by Defendants, Barnes, and Steven E. Gismonde, Jr., Joseph Van Blarcom, Kyle Hunt and John Does 4-10." (Am.Compl.¶ 193.) Count Twelve is a negligence claim against the Sterling High School District Board of Education.

Counts Thirteen and Fourteen allege the same claims as in Eleven and Twelve but against "the Sterling High School District." It is not clear how this defendant differs from the Sterling High School District Board of Education.

Count Fifteen is a claim pursuant to 42 U.S.C. § 1983 by Michael Ward against David Tannenbaum individually and in his official capacity as principal of Sterling High School, asserting the same deprivation of constitutional liberty described above. Count Sixteen is a claim by Michael Ward against David Tannenbaum individually and in his official capacity as principal of Sterling High School, asserting negligence.

Count Seventeen is a claim by Michael Ward against Jack McCulley, individually and in his capacity as Superintendent of Sterling High School District, pursuant to 42 U.S.C. § 1983, for establishing customs and policies that violated Michael Ward's constitutionally-protected liberty interest in bodily integrity. Count Eighteen is also a claim by Michael Ward against McCulley in his individual and official capacities, asserting negligence for, among other things, his failure to remove Barnes from the classroom, failure to discipline offending students, failing to supervise administrators to prevent the beatings, failing to adequately train personnel, and failing to provide adequate security.

Counts Nineteen and Twenty are claims alleging violation of the Individuals with Disabilities Education Act ("IDEA") against Defendants Sterling High School District Board of Education and Gallagher, respectively.

Count Twenty-Three asserts a claim of negligence against parents of students who allegedly assaulted Plaintiff Michael Ward.

In the twenty-fourth count, which is incorrectly labeled. Count Twenty-Eight, Barbara and John Ward, Michael's parents, assert a claim for economic loss against all defendants. They claim that because of the acts and omissions of the defendants, John Ward missed work and lost wages to care for his son.

II. FACTS

Plaintiff Michael Ward was a student at Sterling High School in a program exclusively for students with behavioral disabilities in May of 2002, when the incident that sparked this litigation occurred. Plaintiffs claim that during a gym class that Defendant Barnes was supervising on May 9, 2002, Barnes told the students to "get" Michael Ward, and that they hit, kicked and punched Ward until another teacher came into the room to stop it. (M. Ward Dep. at 143-45.) Michael Ward was unable to recall, at his deposition, which students were involved in the incident, although he believed Steven Gismonde, Jr. (son of Defendants the Gismonde parents) was involved. A former Vice-Principal at Sterling High School, Reno Domenico, testified that Steven Gismonde was involved in the incident. (Domenico Dep. at 81, Pl.'s Ex. O.) Paul Reagle, another teacher at Sterling High School, testified that he witnessed three students, Defendants Kyle Hunt, Steve Gismonde and Joe Van Blarcom, crouched over Michael and punching him in the presence of Defendant Barnes, during this physical education class. (Reagle Dep. at 106-09.)

Plaintiffs claim that these students in Michael's class attacked him at the direction of their teacher, Defendant Barnes. Plaintiffs claim that the beating caused serious physical and emotional injuries, including lasting psychological problems.

Plaintiffs claim that Michael had been the target of attacks by students at Sterling High School for some time prior to this incident. In addition to any emotional or behavioral problems Michael Ward may have, he also has cerebral palsy, which made it difficult for him to walk and was obvious to others. (Barnes Dep. at 130, M. Ward Dep. at 119-20.) Initially, Michael did not complain to his parents or teachers about the beatings he was receiving at school because he feared they would only get worse.

However, Plaintiffs allege that teachers and school administrators were aware that punching and other aggressive physical behavior was commonplace in the program in which Michael had been placed. Defendant Walter Barnes was one of the teachers in the program for students with behavioral disabilities. (Tartaglione Dep. at 45.) (This program was referred to during Barnes's deposition as "ED self contained," for emotionally disturbed students, and all parties acknowledge that the students referred to it as "the Box.")¹ Barnes was...