Zukowski ex rel. Zukowski v. Hamilton Cnty. Dep't of Educ.
Decision Date | 28 July 2021 |
Docket Number | E2020-00939-COA-R3-CV |
Citation | 640 S.W.3d 505 |
Parties | Doug ZUKOWSKI EX REL. Taylor Alexander ZUKOWSKI v. HAMILTON COUNTY DEPARTMENT OF EDUCATION |
Court | Tennessee 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.
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.
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 Plaintiffs’ motion to amend. In its order, the Trial Court granted Plaintiffs’ request to add Alex (by then of majority age) as a plaintiff. The Trial Court also granted Plaintiffs’ request 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 Plaintiffs’ request to add a Title IX claim, stating:
In May 2019, Plaintiffs filed a motion to continue trial. In June 2019, the Trial Court entered an order denying Plaintiffs’ motion to continue. The Trial Court stated, in relevant part: 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:
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:
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