Zukowski ex rel. Zukowski v. Hamilton Cnty. Dep't of Educ.

Decision Date28 July 2021
Docket NumberE2020-00939-COA-R3-CV
Citation640 S.W.3d 505
Parties Doug ZUKOWSKI EX REL. Taylor Alexander ZUKOWSKI v. HAMILTON COUNTY DEPARTMENT OF EDUCATION
CourtTennessee Court of Appeals

Phillip E. Fleenor and M.E. Buck Dougherty, III, Chattanooga, Tennessee, for the appellants, Aimee Zukowski, Doug Zukowski, and Taylor Alexander Zukowski.

D. Scott Bennett and Mary C. DeCamp, Chattanooga, Tennessee, for the appellee, the Hamilton County Department of Education.

D. Michael Swiney, C.J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

D. Michael Swiney, C.J.

This appeal arises from a school bullying lawsuit. Doug Zukowski and Aimee Zukowski filed suit in the Circuit Court for Hamilton County ("the Trial Court") on behalf of their son Taylor Alexander Zukowski ("Alex," who later joined the suit in his own right after turning 18) ("Plaintiffs," collectively) against the Hamilton County Department of Education ("Defendant"). Plaintiffs alleged that Alex was bullied while a student at Chattanooga's Center for Creative Arts ("CCA"), a public fine arts magnet school, and that Defendant breached its duty of care to protect Alex. Plaintiffs appeal, raising a number of issues. We find that the record does not contain the requisite clear and convincing evidence necessary to overturn the Trial Court's credibility determinations. We also find, inter alia , that the evidence does not preponderate against the Trial Court's factual finding that Defendant's employees responded appropriately when Alex reported to them that he was bullied. We affirm the judgment of the Trial Court.

Background

In June 2014, Plaintiffs Doug and Aimee Zukowski, as guardians and friends of their then-minor son Alex, filed a lawsuit under the Governmental Tort Liability Act ("the GTLA") against Defendant in the Trial Court. Plaintiffs alleged that Alex was bullied and sexually harassed while attending CCA, a school run by Defendant. Plaintiffs alleged further that Defendant was aware of the bullying and failed to stop it. In August 2014, Defendant filed an answer in opposition. After a number of procedural delays and a change of counsel, Plaintiffs filed a motion in April 2019 to amend their complaint. Among other things, Plaintiffs wished to add a Title IX claim. In May 2019, the Trial Court entered an order granting in part and denying in part Plaintiffsmotion to amend. In its order, the Trial Court granted Plaintiffsrequest to add Alex (by then of majority age) as a plaintiff. The Trial Court also granted Plaintiffsrequest to add language ‘fleshing out’ their allegations of bullying. However, the Trial Court denied Plaintiffs’ request to name specific students and teachers in the complaint, partially on grounds of undue delay but also on grounds of undue prejudice to the individuals and futility. As pertinent to an issue raised on appeal, the Trial Court denied Plaintiffsrequest to add a Title IX claim, stating:

The same argument concerning undue delay can be made. The facts of this case have been known since at least 2014. They have not changed. Title IX was in existence and could have been pled at the time.
The greater problem, however, is the undue prejudice to the defendant if this amendment was allowed. In Hardcastle, at p. 81, the court set forth the six (6) factors to be considered. The most important factor is the amendment's potential prejudicial effect on the party opposing the amendment.
Certain factors are to be considered by a court deciding this issue. Those factors are:
"(1) the hardship on the moving party if the amendment is denied; (2) the reasons for the moving party's failure to include the claim, defense, or other matter in its earlier pleadings; (3) the injustice to the opposing party should the motion to amend be granted." Hardcastle, at p. 81.
The hardship on the plaintiffs is that they will not be able to assert a claim that could, if proven, result in a larger monetary award. However, that consideration is outweighed by the fact that no reason has been given for the failure to assert the Title IX claim earlier and the injustice to the defendant to have to gear up to defend an entirely different claim than the one it has been facing for the past 4 ½ years.
Finally, the Hardcastle court noted that "Late amendments fundamentally changing the theory of a case are generally not viewed favorably when the facts and theory have been known to the party seeking the amendment since the beginning of the litigation." Hardcastle at p. 81. The court in that case goes on to state that such amendments are usually denied when the opposing party is legitimately surprised or when the amendment "... will (a) cause additional expense and the burden of a more complicated and lengthy trial, (2) require the opposing party to engage in significantly additional pretrial preparation, (3) unduly increase discovery or (4) unduly delay trial."
All four of those factors are met in this case. With the inclusion of the Title IX claim, this goes from a bench trial of possibly a few days to a jury trial of much greater length. The defendant loses the protection of the damage caps afforded by the GTLA and is exposed to the possibility of a much higher monetary verdict. The issues are different, so significant additional discovery will be required....

In May 2019, Plaintiffs filed a motion to continue trial. In June 2019, the Trial Court entered an order denying Plaintiffsmotion to continue. The Trial Court stated, in relevant part: "[T]he Court noted that it had already granted a continuance to Plaintiffs in January 2019. The Court further found that the length of time that this matter has been pending and the need to avoid additional delay in reaching the resolution of this matter were sufficient reasons to warrant denial of this Motion." In July 2019, Plaintiffs filed their second amended complaint.

Trial took place on multiple days from July 9 through July 12, 2019 and then resumed from February 11, 2020 through February 14, 2020. Numerous witnesses testified, including school officials, teachers, and Alex himself. Alex testified to enduring bullying during his seventh and eighth grade years at CCA. Alex testified that a group of girls calling themselves "the Ghetto Girls" tormented him through physical intimidation and the use of terms like "gay." Alex stated that he repeatedly brought this bullying to the attention of school officials but they never took any effective action to stop it. Alex, who had thrived in the sixth grade at CCA, began to fare poorly in school as the bullying persisted. Alex later left CCA and was placed on the homebound program.

On cross-examination, Alex was asked whether he had ever submitted any written complaints about his bullying. Alex stated that he had not, but that he had never been told to do so. Alex testified:

Q. You never submitted any written complaints or notes to anyone about anything that you say was happening to you, did you?
A. Are we -- are we talking about at all like in general at CCA or --
Q. Right.
A. Let's see. I was -- I was never approached by any teachers or any administrators or any counselors to write down my accounts of anything that happened to me except for the [C.G.] incident. I was to write down my accounts of that.
Q. Right. For something that happened to [C.G.]?
A. Correct.
Q. Yeah. So --
A. I was a witness to it.
Q. Right. But you never elected to write anything down, did you?
A. I was never told by an administrator to take a statement for anything that happened to me.
Q. That wasn't my question.
A. Well, that's -- go ahead. Rephrase your question.
THE COURT: Just answer the question, then you can explain it.
Q. My question was you never elected to write anything down and submit it to anyone, did you?
THE COURT: Just answer yes or no and then explain your answer.
A. Okay. Gotcha. No, I never elected to write anything down and that was simply because I was never told to write anything down about what happened.

The record does, however, contain an instance of a contemporaneous report of Alex being bullied. An October 24, 2012 email sent by Alex's homeroom teacher, Stacia Bearden ("Ms. Bearden"), was entered as an exhibit at trial. Ms. Bearden sent this email to her colleagues, including Principal Deborah Smith ("Principal Smith"). Ms. Bearden's email reads as follows:

I got a report today from an 8th grader about a bully in 7th who is making life miserable for another one of our 7th grade students. Once again we have someone bullying Alex Zukowski. He is afraid of her because she is much larger than he is and is afraid to report it out of fear that she will retaliate, but my 8th grader was very upset over it and was crying in my class today over the extreme bullying by this girl towards one of her classmates.
[B.W.] is calling him gay, using homosexual slurs, making fun of him, trying to touch him when he has told her not to touch him, and is also telling him "don't worry I will protect you" in gym when they play capture the flag to insinuate that he is less of a man and can't take care of himself because [of] her assumptions over his sexuality. This is not the first time Alex has been bullied at this school, and I personally have noticed [B.W.] being inappropriate with others in the hall last year even when she was in 6th grade and spoke to her about respecting the personal space of others. I have also noticed Alex being more withdrawn, participating less in class, and having a sad demeanor in class and in the hallway. He is suffering!
This needs to stop IMMEDIATELY. Alex is a precious child that I adore, so I am very angry over this and feel someone else needs to handle this situation as soon as possible. I have no idea about his sexuality, nor do I even care; however, this child does NOT need to feel unsafe at CCA. It is damaging him both emotionally
...

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