Werth v. Board of Directors of Public Schools, 05-C-0040.

• Decision Date: 22 January 2007
• Docket Number: No. 05-C-0040.,05-C-0040.
• Citation: 472 F.Supp.2d 1113
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Joseph R. WERTH, by his next friends, Mary and Gene Werth, Plaintiff, v. BOARD OF DIRECTORS OF THE PUBLIC SCHOOLS OF THE CITY OF MILWAUKEE; Joseph Kruzel; State of Wisconsin, Department of Health and Family Services, Defendants.

472 F.Supp.2d 1113

Joseph R. WERTH, by his next friends, Mary and Gene Werth, Plaintiff, v. BOARD OF DIRECTORS OF THE PUBLIC SCHOOLS OF THE CITY OF MILWAUKEE; Joseph Kruzel; State of Wisconsin, Department of Health and Family Services, Defendants.

No. 05-C-0040.

United States District Court, E.D. Wisconsin.

January 22, 2007.

COPYRIGHT MATERIAL OMITTED

Lynn M. Novotnak, Thomas D. Miller, Hawks Quindel Ehlke & Perry SC, Milwaukee, WI, for Plaintiff.

Jan A. Smokowicz, Milwaukee City Attorney's Office, Milwaukee, WI, Richard A. Victor, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

CLEVERT, District Judge.

Joseph Werth, through his parents, sues the defendants regarding two alleged incidents in which he was injured by other students at South Division High School in Milwaukee, Wisconsin, while in defendant Joseph Kruzel's shop class. Kruzel and the Board of Directors of Milwaukee public schools move for summary judgment.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the initial burden of demonstrating it is entitled to summary judgment. Id. at 323, 106 S.Ct. 2548. Once this burden is met, the nonmoving party must designate specific facts to support or defend each element of the moving party's cause of action, showing that there is a genuine issue for trial. Id. at 322-24, 106 S.Ct. 2548. In analyzing whether a question of fact exists, the court construes the evidence in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The existence of any factual dispute does not defeat a summary judgment motion; there must be a genuine issue of material fact for the case to survive. Id. at 247-48, 106 S.Ct. 2505. "Material" means that the factual dispute must be outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir.1997). Failure to support any essential element of a claim renders all other facts immaterial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Therefore, summary judgment is appropriate against a party who, after adequate time for discovery and in the face of a properly supported summary judgment motion, fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548. To establish that a question of fact is "genuine," the opposing party must present specific and sufficient evidence that, if believed by a jury, would support a verdict in the opposing party's favor. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249, 106 S.Ct. 2505. A "metaphysical doubt as to the material facts" is insufficient to defeat a motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir.1998). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. "A district judge faced with [a summary judgment] motion must decide ... whether the state of the evidence is such that, if the case were tried tomorrow, the plaintiff would have a fair chance of obtaining a verdict. If not, the motion should be granted and the case dismissed." Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572-73 (7th Cir.1989) (citations omitted).

UNDISPUTED FACTS

At the time of the events underlying this lawsuit, Joseph M. Kruzel was employed as a technical education teacher at South Division High School, which is a part of what is commonly called the Milwaukee Public Schools, or MPS. (Defs.' Proposed Findings of Fact (DPFOF) ¶ 1.¹) As of 2001, Kruzel had been a teacher with MPS for more than twenty-five years. (DPFOF ¶ 2.)

Joseph Werth was a disabled minor who began attending ninth grade at South Division at the start of the school year in the fall of 2001. (DPFOF ¶ 3; PPFOF ¶¶ 9, 13; M. Werth Dep. at 3-4².) Werth had been diagnosed with cleidocranial dysostosis syndrome, a congenital disorder of bone development, characterized by absent or incompletely-formed collar bones, an abnormally shaped skull, characteristic facial appearance, short stature, and dental abnormalities. (Pl.'s Proposed Findings of Fact (PPFOF)³ ¶ 1; Defs.' Resp. to Pl.'s Proposed Findings of Fact (Defs.' Resp.)⁴ ¶ 1; Miller Am. Aff., Ex. 1 at 11.) See also Stedman's Medical Dictionary 598-99 (28th ed.2006). Werth had a hump on his back and was considerably smaller than other high school students. (PPFOF ¶¶ 22-23; Kruzel Dep. at 33.)⁵

Werth attended MPS schools for grades one through seven, and a parish school for eighth grade. (PPFOF ¶¶ 3-5; M. Werth Dep. at 37.⁶) The school district prepared an Individualized Education Program (IEP) for Werth when he attended elementary school and middle school. (PPFOF ¶ 6.) While he attended MPS schools, Werth's physical disabilities subjected him to verbal attacks and mockery by other students. (PPFOF ¶ 2; Defs.' Resp. ¶ 2.⁷)

When Mary Werth, Werth's mother, registered Werth at South Division, she told the assistant principal about the difficulties Werth had experienced at other schools because of his disabilities and physical appearance. (PPFOF ¶ 9.) The assistant principal told Mary Werth that the school would make sure nothing would happen to Werth because it was a safe school. (PPFOF ¶ 10.) The assistant principal explained that the school had security guards who would ensure Werth's safety. (PPFOF ¶ 12.)⁸

Werth was a student in Kruzel's ninth hour woodshop class during the school semester that ran from about August 24, 2001, to January 21, 2002. (DPFOF ¶ 3; PPFOF ¶ 14.) Sometime prior to October 16, 2001, Kruzel met with Werth's mother, who informed Kruzel about Werth's disabilities. (DPFOF ¶ 9; Kruzel Dep. at 28-29.) At that meeting, Mary Werth told Kruzel that Werth was very susceptible or sensitive to pain. (PPFOF ¶ 19; Kruzel Dep. at 31-32.⁹)

On October 3, 2001, Mary Werth initiated a "Special Education Referral" for Werth. (PPFOF 1125; see M. Werth Dep. at 23-24.¹⁰) Kruzel did not recall seeing any referral concerning Werth until after October 16, 2001. (PPFOF ¶ 26, 33.)¹¹ Prior to that date, no one from the School District or the special education department at South Division talked to Kruzel about ways to keep Werth safe from other students in the class. (PPFOF ¶ 79.¹²)

Throughout Kruzel's career, special education teachers often accompanied students to his classes and identified themselves so he would know whom to contact if a problem with the student arose. (PPFOF ¶ 27; Defs.' Resp. ¶ 27; Kruzel Dep. at 24.) However, at South Division, Kruzel recalled just one occasion when a special education teacher or aide accompanied a special education student throughout class. (PPFOF ¶ 30; Kruzel Dep. at 24-25.) With regard to Werth, the special education teacher did not meet with Kruzel to discuss Werth's special needs before he started attending Kruzel's class. (PPFOF ¶ 32.)¹³

Kruzel had forty students in the ninth hour class and was the only instructor. (DPFOF ¶ 5.) During the Fall 2001 semester, Kruzel had a paraprofessional aide to assist with his classes, including Werth's class. (PPFOF ¶¶ 96-97.) However, the aide was not a special education aide and was not assigned directly to Werth. (PPFOF ¶ 98.)¹⁴ A security guard accompanied Werth to Kruzel's class as a protection so other students would not harass him. (PPFOF ¶ 24.)

Most students in Kruzel's class were generally fifteen or sixteen years old. (DPFOF ¶ 6.) During class, Kruzel would constantly go from student to student, helping them make small wood decorative objects. (DPFOF ¶¶ 7-8.)

On October 16, 2001, Werth and the other students were working on projects. (DPFOF ¶ 10; PPFOF ¶ 34.) Larry W., another student, was working on a project at a machine located about two feet from Werth. (PPFOF ¶ 36.) Larry W. was a problem student and Kruzel called him "incorrigible." (PPFOF ¶ 37; Kruzel Dep. at 61-61.¹⁵) Larry W. presented a danger to other students because he would run and push and did not observe safety rules. (PPFOF ¶ 38; Defs.'s Resp. ¶ 38; Kruzel Dep. at 64.)

During the middle of class, Kruzel walked to his office. (DPFOF ¶¶ 11, 12; Pl.'s Resp. ¶ 2; J. Werth Dep. at 16.) Larry W. picked up two pieces of wood and threw them at Werth, one at a time. (PPFOF ¶ 39.) The two pieces of wood struck Werth in the back. (PPFOF ¶ 40.) Each piece was about four by four by one and a half inches. (PPFOF ¶ 41.) Kruzel was in the office adjacent to the classroom when Larry W. struck Werth with the pieces of wood. (PPFOF ¶ 42.) However, Kruzel could see what was happening in the classroom through the glass window in his office and saw Larry W. hit Werth with the pieces of wood. (PPFOF ¶¶ 43-44.)

Werth picked up the two pieces of wood, took them to Kruzel's office, and complained that Larry W. had thrown them, hitting Werth in the back. (PPFOF ¶¶ 45-46; DPFOF ¶ 15; J. Werth Dep. at 19.) Kruzel claimed that he did not see Larry W. strike Werth with the wood and told Werth to sit back down. (PPFOF ¶ 47.) Werth was not crying. (DPFOF ¶ 16; Pls.' Resp. ¶ 6.) Moreover, Kruzel did not observe any sign of injury. (DPFOF ¶ 17; Pls.' Resp. ¶ 7.¹⁶) Werth returned to his worktable. (PPFOF ¶ 48.)

Another student, Joe F., also threw a wood board about four by four by one and a half inch in size, striking...