Young v. Blytheville Sch. Dist. & Erick Smith

• Decision Date: 06 March 2013
• Docket Number: No. CA 12–696.,CA 12–696.
• Citation: 2013 Ark. App. 50,425 S.W.3d 865
• Parties: Eddie YOUNG, Appellant v. BLYTHEVILLE SCHOOL DISTRICT and Erick Smith, Appellees.
• Court: Arkansas Court of Appeals

2013 Ark. App. 50

425 S.W.3d 865

Eddie YOUNG, Appellant

v.BLYTHEVILLE SCHOOL DISTRICT and Erick Smith, Appellees.

No. CA 12–696.

Court of Appeals of Arkansas.

Jan. 30, 2013.

Rehearing Denied March 6, 2013.

Law Offices of Hoskins & Harris, P.A., Blytheville, by: James W. Harris, for appellant.

W. Paul Blume, for appellees.

DAVID M. GLOVER, Judge.

Eddie Young appeals from the circuit court's dismissal of his complaint against appellees, Blytheville School District and one of its bus drivers, Erick Smith, on the basis of immunity. We find no error and affirm.

Appellant is the father of B.Y., who was thirteen years old on June 4, 2010, when she rode the school bus to Blytheville Middle School; after she entered the school, a minor male forced her into the men's bathroom, where she was raped. Appellant sued the school district and the bus driver, alleging causes of action under the Arkansas Public Education Act, Arkansas Code Annotated sections 6–15–1001 to –1007 (Repl.2007); under article 2, section 13 of the Arkansas Constitution; and for gross negligence. Appellees filed a motion to dismiss on the grounds that they were immune from liability under Arkansas Code Annotated section 219301 (Supp.2011); that the Arkansas Public Education Act does not provide a private right of action; that the immunity offered by section 21–9–301 is not abrogated by article 2, section 13; that the school district does not maintain a policy of general liability insurance; and that appellees had no duty to provide safe transportation or to ensure BY's safety.

Article 2, section 13 provides:

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.

Section 21–9–301 provides:

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, public charter schools, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

In response, appellant asserted that the Arkansas Public Education Act requires a school district to provide a safe education and that school districts must be held accountable for their failure to do so; that the immunity granted by section 21–9–301 cannot abolish a constitutional right; and that it could not shield appellees from liability under certain federal statutes. Appellant filed an amended complaint adding claims under 42 U.S.C. section 1983 for failure to protect BY's due-process rights under the 14th Amendment to the United States Constitution and under 20 U.S.C. section 1681 (Title IX of the Education Amendments of 1972) for failure to protect her from sexual harassment and rape by another student. Appellees filed another motion to dismiss, asserting that appellant had failed to allege any facts demonstrating a deprivation of BY's constitutional right to due process or that 20 U.S.C. section 1681 applied to this situation.

On June 25, 2012, the circuit court entered an order of dismissal, stating:

1. The lawsuit brought by the Plaintiffs is based on a claim of negligence on the part of the Defendants.

2. The Defendants, the Blytheville School District and one of its employees, Mr. Erick Smith, claim the statutory immunity from liability for negligence conferred by A.C.A. § 21–9–301. The Defendants are entitled to such immunity.

3. The Plaintiffs' claim under the Arkansas Public Education Act of 1997, A.C.A. §§ 6–15–1001 through 1007, inclusive, fails in that the Act does not confer a private right of action, and the Act does not authorize damages for a purported violation of the Act. Absent that, no such right exists. Larry Hobbs Farm Equipment v. CNH Am., 375 Ark. 379, 389, 291 S.W.3d 190 (2009).

4. The Plaintiff's claim that the Constitution of Arkansas, Art. 2, § 13, confers a right to a remedy in all circumstances, thereby abrogating the immunity statute, is without merit. White v. City of Newport, 326 Ark. 667, 672 (1996).

5. The Plaintiffs' claim that the Defendants violated some legal duty to provide safe transportation and to ensure safety is a restatement of their negligence claims. The Court does not doubt the commitment of the Defendants to provide safe transportation, but no legal duty, such as the Plaintiffs suggest, exists. The Plaintiffs' attempt to avoid the immunity of the Defendants by suggesting that the Defendants exhibited “gross negligence” in purportedly allowing the claimed injury to occur; but the Arkansas Court of Appeals already has dispensed with such an argument in the case of Brown v. Fountain Hill School District., 67 Ark.App. 358 (1999).

6. Plaintiffs' allegations under 42 U.S.C. § 1983 and 20 U.S.C. § 1681 state no claim. There is no right to transportation; and even if there were, the claim by the Plaintiffs solely is a claim for negligent supervision, denied by the Defendants, and stating no federal constitutional right which has been violated. She has not been denied access to transportation.

7. 20 U.S.C. § 1681 is a prohibition against discrimination on the basis of sex relating to participation in any education program or activity receiving federal financial assistance. The allegations of the Complaint do not demonstrate that the minor Plaintiff was so deprived, regardless of sex.

Appellant then brought this appeal.

In reviewing the trial court's decision on a motion to dismiss under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure (2012), we treat the facts alleged in the complaint as true and view them in a light most favorable to the party who filed the complaint. Alvarado v. St. Mary–Rogers Mem. Hosp., Inc., 99 Ark.App. 104, 257 S.W.3d 583 (2007). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. However, a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id. The court will look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id. Whether appellees are entitled to immunity from suit is purely a question of law, which we review de novo. Helena–W. Helena Sch. Dist. v. Monday, 361 Ark. 82, 204 S.W.3d 514 (2005).

We review issues of statutory construction de novo, as it is for this court to determine what a statute means. City of Rockport v. City of Malvern, 2012 Ark. 445, 424 S.W.3d 870. In this respect, we are not bound by the circuit court's decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id.

In his first point, appellant argues that the Arkansas Public Education Act establishes a school district's duty and provides a private right of action. Section 6–15–1002 provides:

(c) The General Assembly further acknowledges that every school district in Arkansas must graduate academically competent students, must have qualified teachers and administrators, must provide a safe, efficient, and accountable program, and must be supported by and assisted by the state.

Arkansas Code Annotated section 6–15–1005 provides in relevant part:

(a)(1) Arkansas schools will have safe and functional facilities.

....

(b)(1) The school climate will promote student achievement.

(2) Every school and school district will enforce school district policies to ensure the safety of every student during school hours at school-sponsored activities. These policies will include, at a minimum, policies on weapons, violence, tobacco, alcohol, other drugs, gangs, and sexual harassment.

(3) Every school and school district will enforce a code of behavior for students that respects the rights of others and maintains a safe and orderly environment.

(4) Every school and school district will have in place a policy on addressing disruptive students.

....

(g)(1) All public schools will be accountable to the public they serve.

The Act does not expressly provide a private right of action, nor does it define the term “accountable.” Appellant asserts that the legislature intended that if a school district failed to do that which was required of it—provide a safe program—it would be accountable by paying for that failure, and that the circuit court's interpretation of section 6–15–1005(g)(11) rendered its “accountable” requirement a nullity. Appellees respond that the Arkansas Public Education Act simply establishes standards for schools to achieve but provides no right of action to enforce the act.

Although we agree with appellant that the Act imposes a duty,¹ we agree with appellees that it does not provide a private right of action. In Arkansas, the violation of statutes may be considered evidence of negligence. See Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999); Watkins v. Arkansas Elder Outreach of Little Rock, Inc., 2012 Ark. App. 301, 420 S.W.3d 477. The Restatement (Second) of Torts, section 286 (1965) provides the following analysis for legislative enactments to be considered evidence of negligence:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part:

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that...