Sue Krueger and Joe Bridewell On Behalf of The Minor Child Helene Bridewell VS Catholic Diocese of Baton Rouge, albert Merey, Jr. and Kathi Merey

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0742 S K JB ON BEHALF OF THE MINOR CHILD H B VERSUS t CATHOLIC DIOCESE OF BATON ROUGE AND A M JR ANDC M Judgment Appealed from 1 Rendered December 21 2007 the Nineteenth Judicial District Comi In and for the Parish of East Baton State of Louisiana Rouge Docket Number 531 558 Honorable Lewis O Kay Bates Judge Counsel for Unglesby Robert M Marionneaux Jr Plaintiffs Samuel C Ward Jr S K and J B on behalf of the minor child H B Baton Rouge LA Daniel R Atkinson Jr Baton Rouge LA Appellants Counsel for Defendant Appellee Catholic Diocese of Baton Rouge and A BEFORE parties M Jr and C M WHIPPLE GUIDRY AND HUGHES n Courts of Appeal the initials of the Pursuant to Rules 5 1 and 5 2 of the Unifonn Rules involved will be used to protect the identity ofthe minors involved in this matter 1 GUIDRY J The parents of claims against the special education student Catholic Diocese of Baton appeal a their judgment dismissing Rouge for the alleged sexual assault of reasons that and A M met For the by another special education student during class the student follow a we reverse FACTS AND PROCEDURAL HISTORY Prior to the commencement of the 2004 2005 school term H B and By the time classes began in the fall of 2004 began dating progressed During so far in their relationship that school term High School and to as be considered and A M attended the HB both enrolled in the were special enrolling and school girlfriend Redemptorist education program that was 2 Diocese Although H B the operated by the Catholic Diocese of Baton Rouge was boyfriend same and A M had HB in the program for the first time that fall A M returning was a student to the program The special education program three classes that are class taught by Robbins class taught by populated by special K Students functioning was both H B and A M Gail On December 6 According to the Diocesan Program under 2004 are comprised according to middle or their in the aide for Ms lower level of competency special beginning as of were education program for the of the 2004 2005 school term in Ms Robbins class an s incident occurred wherein Ms skirt while the students were Little observed sitting together at a Parent Student Handbook the Department of Special Education is a the jurisdiction of the Diocesan School Office and operated through the under Office at the Diocesan level Students faculty and finances are Special Education Central the jurisdiction of the Department where the students a At the placed A M with his hand under H B 2 at is higher functioning level were placed The director of the Campo were needs students Theresa Little served Lynn Robbins other instructors entire Diocese Redemptorist High School At the time students of a functioning level a at of Special Education housed 2 and not the administration of the school Ms Little summoned H B computer in the classroom classroom and questioned them about what she observed students that she would report the incident school that for medical day Campo alTanged made to the keep Nevertheless As Ms Ms Campo and to not agree and A M HB Jr and C M court on as the claims asserted dismissed the unsupervised plaintiffs suit she AM on HB 7 was attended by the Thereafter efforts were school and outside of school claims both students and their remove aptitude of the HB was two was parents students from Ms Robbins class class however S K HB s mother did claiming damages individually based at on as Diocese and the incidents in which A M Plaintiffs named the Diocese school and C M Jr defendants in the suit but later The matter Following a proceeded trial to bench trial the trial against the Diocese finding that it was not improper touching occulTed because the students The trial court February Ms promptly withdrew H B from the school against the plaintiffs which of the the parents of A M convinced that the incidents of were Ms Little father later filed suit against matter school assessment improperly touching discuss the Campo arranged another meeting that collectively plaintiffs dismissed their claims solely s at completely so at absent from second incident occulTed in which A M functioning with the decision and discovered a Ms Robbins in the middle behalf of H B was 2005 meeting and her S K and J B on students separate both to was Campo of the incident parents and Ms Robbins s made the decision to place her the matter improperly touched H B Campo result of that a to discuss the second incident Ms Following by two March 15 on discovered to have attended meeting a mother A M s and advised the students reasons outside of the She then informed both Robbins who Ms Robbins in turn informed Ms with their parents students H B to Ms and A M signed a written 2007 and it is from this appeal 3 judgment dismissing the judgment that plaintiffs now DISCUSSION In this Diocese contend that the trial appeal plaintiffs for the responsible court erred in assault of H B alleged sexual by failing to hold the another student during class Teachers are responsible their have prevented but such superintendence 2320 Further this Diocese La as responsibility only responsibility C C damage caused by their students while under caused the act that the for the damage and failed extends 2320 also art to a exercise of the functions in which agents and teachers supervision required owes a that provides 97 0534 3115 there La p to 7 be La App 1st Cir 11 13 98 Before 738 So 2d 7 proof unreasonable risk of St So preventable the employers are over See Wallmuth in the overseers through its students and the v the age of to Parish Rapides 346 make the Diocese the insurer of the supervision of all of negligence in causal connection between the lack of and case students is neither possible nor safety required discharge their duty to provide adequate supervision Bell v Ayio 2 5 99 must not in this supervision appropriate 813 So 2d 341 02 3 duty to supervise does of the children Constant for educators La 4 mi Thus the Diocese duty of reasonable supervision the children and the attendant circumstances School Board 01 1779 p 8 C C and and might La so or masters servants they are employed is reasonable competent do to school board damage occasioned by their answerable for the Yet the attaches when the teachers injury if the must 731 So 2d 893 liability can be 899 imposed providing supervision supervision be foreseeable writ denied on the Diocese and also proof 99 2017 p constructively 5 La 2d 1227 1232 writ denied 01 0233 La 3 23 01 4 of a and the accident Further the or actually requisite degree of supervision had been exercised Tammany Parish School Board 98 App known Frazer 1st Cir 12 22 00 787 So 2d 1001 v 774 The under La C C So 2d of analysis As the 2315 art under La C C liability 2320 is art essentially same as 01 1779 at 9 explained in Wallmuth court the 813 at 347 E ach reasonable requires supervision satisfied under La C C in fact of the cause that the School Board breach its statute over its students The causation element is 2315 if it is proven that the breach art which in plaintiffs injuries of duty a breach of was the supervision only be satisfied if it is proven that but for the lack of reasonable supervision plaintiffs injuries would have been prevented case can which is similar to the element of La prevention C C 2320 art Louisiana courts appear to have interchangeably analyzed the liability of a school board for damages caused by its students under Thus both La C C arts 2315 and 2320 Hence the before this question supervision was owed to HB court and based that was the facts of this on case is what duty of duty reasonably satisfied by the conduct of Ms Little The plaintiffs ralse arguments in support of their assertion that the two Diocese breached the duty owed A M was discovered students teacher she was training was The nor not with respect some to evidence students in the care on formally certified teaching class establishing and argument that Ms Little s Ms Robbins the aide was the Diocese failed to no Ms Little provide was was inadequate solely because teacher s aide in West Baton a Headstart program in California supervision supervision of was an improper aide of the students 5 or inadequate we must was per se care some Rouge and a that it not evidence in support of their Little testified that she had received being the left to trained to teach the students left in her Ms or both occasions when certified and trained teacher a offer plaintiffs further testified that she had worked with without that during plaintiffs allege that supervision provided by not certified Although she the of the students because present in the classroom that the HB out absent from school and Ms Little Thus adequate supervision allegation they point improperly touching was the class supervise First to Thus leave the reject the plaintiffs inadequate Second the Diocese breached the to be 2005 argue that the trial court should have found that the plaintiffs to H B duty of supervision owed in the physically present despite knowledge of same A M because A M was to sit next to H B classroom and in March prior behavior of improperly touching s allowed in HB December 2004 According to handwritten report submitted a December 6 2004 then goes to state on put his hand under H B A M the way up thigh all I didn t see him that Ms Little After present at the be made a meeting the minutes from the first were advised not to Ms was arranged meeting as allow the students recorded taken asked the aide and to go to Thereafter efforts myself The report to Ms Robbins She also advised Ms Little Ms Robbins contacted to discuss the matter an by Ms Although those efforts would understanding that out Campo generally the movies of school reflect that the parents unsupervised were In summation so that no further action would have to be coming for communication between all were made to keep the the students to two students separate separate classrooms In email to which efforts complete correspondence some lunch HB and A M hook up between classes and go to the other class in the afternoon tried didn t voluntarily to 6 of between Ms Robbins and S K in January 2005 Ms Robbins related HB also that they would not continue to get talk to their children and support the assigmnents during the school day Today the would deter any further inappropriate behavior apparently included sending their her so to parents I thanked them all for parties hopefully touching else their behavior The students I asked both students to behave teacher was that Campo documented into trouble sic both in school and students apart two just counseled about students skirt he on parents about the incident meeting unifonnly acknowledged keep to she stated that with the students outside of the classroom met being infonned of the incident by Campo and Ms s any where touching and told them that she would report the incident the students to tell their Ms Little by at I told her she could stay until she finished her science lesson but she continued to stay beyond this point I had to make another request The aide overheard him to telling HB that she would have to treat she could stay in class We told A M that H B be his girlfriend to treat him nicely and we thought that nicely have A M so intimidating thing to imply this to her They both realization that their behaviors have caused them this Ms she said Campo told me that HB there all year 3 the had to come was an to the problem stay in the other class until could go back HB has been and it s been no problem The second incident of In the incident HB may didn t inappropriate touching math class attending occurred on March 15 2005 report submitted by Ms Little about the second incident she relates following Mrs Robbins sick Usually she had a group of students at one the young man and I have another group of students including including H B at the opposite end of our very large classroom or 4 HB is in Mrs Nerona s classroom After presenting the science was out table lesson I sent the other student to another class to complete his seatwork because Mrs Robbins was out sick and I needed to separate H B and him I shaped table in the front of the room with some students seated around the table and a few standing waiting to get their work checked The aide from the other class brought him back to class to have his work checked As I was checking papers I looked to the right and noticed H B and him sitting next to each other on the was at sitting the u other side of the table two feet away from me His hands were under the table so I told him to put them on the table and asked the two of them Mrs why they sitting together I told them Robbins that night about all of this were When Ms Little questioned A placing his hand on HB s 3 resulting separate M about the second incident A M lap however when Mrs Robbins later about the incident A M stated that H B took his hand and and in her panties I told to in his touching her private At trial Ms only confessed to questioned pulled it AM under her skirt area Campo explained that in populating the three special education classes at Redemptorist the goal was to place students in the class as close to their overall functioning level as possible while trying to balance the apportionment of students among the three classes As she explained I can register children to even classes out and again it is ajudgment call on my part that I may have children working on various levels and group them in a class Moreover Ms that assigning students to a patiicular teacher s class would be more Campo explained appropriately referred to as assigning the students to a homeroom class since students could be sent to another class for particular subjects based on their competency level for the particular subject 4 Ms Nerona taught the class for students classified as being of a middle functioning level 7 At the second Ms incident Campo again parents of A M Ms meeting met Campo kept the discussed in addition to by Ms with Ms Robbins all each student acted s during the day functioning giving rise allow A M to remain in Ms separated Ms Thereafter H B Considering place to S K HB so this evidence teacher s meeting Ultimately a on decision to separate her consideration of were at fault and to completely the decision angry about the failure of Diocesan particularly trial court clearly foreseeable and to was keep clearly inappropriate aide present 2004 behavior while Therefore in them employees wrong in failing to find that The unreasonable risk of involving the together light in a to completely separate actually known to the Diocese based prior incident that occurred in December same were in Ms Nerona s class and very the Diocese breached the duty of supervision owed in the and A M withdrawn from the program following the first incident the case was and the attended that the students would be was the students in different classes and in this the second she had made place Robbin s class Campo noted that was HB level and her belief that both students to S K During the meeting meeting She then stated that based she had decided inappropriately the students correspondence between the incident the March 2005 to the father of H B minutes for the second Campo informed the students parents that the students relative Campo Ms Little and J B Additionally emails and other internet some Ms called meeting same students classroom injury on the engaging setting with of the December 2004 incident a the requisite degree of supervision required that the students be kept completely separate which would have clearly prevented the second incident The March 2005 incident like the December 2004 incident occurred result of the Diocese the teacher together at was allowing absent and which time A M Ms Little allowing was able an these to aide two to supervise a a class alone when special education students inappropriately touch H B 8 as to sit Ms Little had witnessed and behavior inappropriate the first incident and reported occurring if these readily acknowledged both at two her class to HB as was circumstances she Her conduct of grading same students aware were of the likelihood of As Ms Little together have his fully was Yet assignment graded that A M aware this despite immediately taking the precaution of ascertaining that rather than come near to thus trial and in the incident report she submitted in conjunction with the second incident she returned was table was inappropriate required for the continued simply proper exercise of the nor awareness AM did had collected special education students sat at behavior in her presence that constant a more students in diligent and A M constant from Obviously the mere adequate School Board 01 0556 La 02 0005 La 7 602 See 2d 773 reasonably supervise her class when teacher was failed to provide See Doe a minimum reI was to be in the insufficient student was was Vaughn found that same to deter Orleans Parish v a teacher failed to sexually assaulted while the Ms Little was aware of keeping the students apart ex reI Doe was that based a on her certain level required which she DeSoto Parish School Board 39 779 9 the 2d 967 writ denied 802 So Furthermore v allowed to by the first incident that had 11 28 01 wherein it a ex of the December 2004 incident supervision consisting at presence does not establish that the Vaughn present in the classroom personal knowledge of mere App 4th Cir 818 So Little demonstrated as occurred in December 2004 and thus her was were presence of Ms acting inappropriately supervision exercised required degree of supervision be exercised relative question patiicularly when the students classroom not supervision of all students in light of the past problems the students at issue the attendant circumstances involving the competent supervision in light of the past Although the duty of supervision owed by the Diocese generally does require the not owed under the grade the assignments she to papers while these two neither reasonable duty had been La 2d Cir 6 29 05 App 2d 167 wherein the 907 So 2d 275 found that the school administration s court sexual misconduct involving teenagers sufficient the coaches required was to on place the Moreover OCCUlTed in result A we not was part to on 924 So of prior events was certain level of supervision would be we find the Diocese wrong in holding that the Therefore trip result of H B court its was clearly that the March 2005 finding consensual participation and incident solely as a As the court observed in Desoto Parish School Board as a the s participation in the incident sued statutorily responsible for Parish School Board 39 779 was awareness trips for school sponsored a bus 06 10 2 adequately supervise the students negligent based student s consensual trial court notice that find that the trial M actions s Diocese is on bus on subject school sponsored negligent for failing Diocese writ denied 05 2020 La manifestly at 11 in upon is not relevant any fault attributable to H B 907 So erroneous not 2d at 282 holding that as the See Desoto We therefore hold that the the Diocese did not breach the duty of supervision owed If the fact finder does disposes of the a de novo Glass v 2d 143 Inc 01 1209 p 155 writ denied 02 1048 La have been an issue because of appellate court in reversing the Magnolia School the requisite we 21 7 602 La an earlier earlier finding that finding must make presented in the record 13 App 5th Cir 3 02 have found that the Diocese breached the duty owed and that had degree of supervision been exercised the harm suffered by According significant physical damages pursuant to La to the court to detennine de HB art 2315 7 10 based on HB by the Diocese s could is that novo petition the plaintiffs seek damages for the mental and emotional distress suffered C C 815 So 818 So 2d 776 prevented the only issue left for this damages and the reach determination of undecided issues from the facts Since of case not severe exemplary alleged wanton and reckless disregard for the and rights safety of H B and loss of consortium for S K and J B damages We will first consider the claims of loss of consortium of consortium includes such nonpecuniary components as pecuniary elements loss of love relations comfort and solace 1st Cir 3 28 07 2d 498 In 960 So general a love and affection relations 6 4 2 loss of Pena 2d 988 995 impact on on us we amount to be reasonable 5 13 damages now are must consider H B those which may s not be fixed but which instead involve mental loss of gratification lifestyle which or cannot HMO of Louisiana 187 204 205 intellectual or or with any physical pain Inc 06 0042 p writ denied 06 2938 24 La La 2 16 07 At the time the incidents OCCUlTed H B year older HB was diagnosed as App of sexual although limited 500 00 to the We believe this HB and A M s case General of pecuniary exactitude suffering inconvenience the physical enjoyment really be measured definitively 1 loss of general damages degree or 959 So 724 We award counseling individual claim for App State Farm Insurance v ongoing relationship which impacted the particular circumstances of this We sexual loss of financial suppOli history involving s Loss La impairment was some presented who had limited given the family 3 elements 946 So 2d 708 find that there the evidence 1 000 00 to the mother father and seven Lewis fidelity 2d Cir 12 27 06 App the record before familial ties based on 06 0364 p society and companionship performance of material services 41 527 p 22 La Based Inc society writ denied 07 0875 La 6 22 07 loss of aid and assistance and 7 loss of Company affection companionship claim for loss of consortium has loss of K and J B loss of services and such as Delchamps v by S or other losses of life in terms of money 1 st Cir 11 15 06 or Hymel 951 So of v 2d 949 So 2d 425 was 14 years old and A M was one being developmentally delayed hearing impaired 11 and having testing Attention Deficit Hyperactivity Disorder H B age of seven Both H B by and sat by and A M and me up in my skirt I at trial asked She said that Ms Little on the way Following occurrence the on to visit the a at just put private came his hands to tell sat by took his hand and 5 area Following the the trial stated that she observed H B same S K arm and lean her head on his day testified that she learned of the questioned H B because she was S K stated that H B told her that her bottom hmi and that private s immediately S K area pediatrician examined Monday and he just acknowledged that he her through his arm s statements under desk took H B to the Baton According HB HB pediatrician indicated that school at the bus after school that infection but also noted H B while the March my work and he sic A M after it had occurred when she A M had touched her lap panties to touch the March 2005 incident day my during her left knee but stated that H B who also testified just whining and crying Clinic where on get her come walk up behind A M and put her shoulder that gave rise to this describe what occurred to sitting down doing was under her skirt and in her occurrence psychological following the incident she felt bad and wanted to mom and that he put his hand placed it regarding the incidents put my sic hands the teacher and call her HB were H B testified 2005 incident a years old Several witnesses testified suit also had chief that did to the complaint Rouge medical record of that was a possible bladder Boyfriend touched her private once before at movies last year area didn t like that S K HB 5 also testified that the week following the March began receiving counseling because of the incident A classmate of H B touching and A M who allegedly testified at trial and also stated that it skili however because of several critical consider it for purposes of our de novo was placed in the classmate review ofthis matter 12 S K she and testified that they observed the March 2005 incident of H B who had discrepancies 2005 incident s A M s hand in H testimony we B s do not treated with the and psychiatrist a medical records that only the March 2005 incident but psychologist following were placed into evidence psychiatrist Those records indicate that only two for visits were possibly According she had to the boyfriend a Redemptorist at The doctor further cry skirt in my quotes H B HB as told him that area The doctor and that H B depressed saying vacillates I miss visited the psychologist S K said at they and H B cried and treated were were A M try by but outside of school that had school term together or presented at As visit with trial that draped over them at one to find following HB to dated the sn at the that 2005 t depressed up her mom is The doctor further S K testified that one sees but the her on and off the second incident andH B s traumatized because of the She further stated that she that H B where she is HB is pretty happy depressed and A M commencement a s relationship of the 2004 2005 respective homes There was to movies evidence of their dates H B and A M would engage in acts of movies and while either A M The handwritten medical 21 him go will 11 April happy a new were episodes s or HB s home note for the third visit called in 13 6 break up with and he would i acknowledged another in their on some touching while was that H B presented regarding begun prior psychiatrist part of their dating relationship H B and A M would go sexual 6 also was February boy in her class put his hand the Catholic Diocese depressed on difficulty letting least six times and still kid most of the time but she will have little Finally evidence she has between sad and Redemptorist both she and way that a notes stated that in the months removal from to In the second medical note that H B private that visit H B told the that she started that H B notes say to him I love you psychiatrist relates note of handwritten the three visits occuned The first documented visit occuned before the March 2005 incident 2005 to sitting There on a were simply states that couch with also a a blanket copies of several prescription for Prozac and A M that email conversations between H B very explicit HB identified by and introduced into evidence were Considering the foregoing specifically the mother s testimony yet tempered by the limited medical records that were introduced into evidence and this incident we find that H B suffered some minor temporary HB s physical pain emotional distress because of the March 2005 incident Thus in view of the of the hann inflicted sufficient to of this award As for the to La general damages award of a plaintiffs request C C art 2315 7 Although and A M find that and extent 5 000 00 is compensate H B for the injuries she sustained given the circumstances case pursuant we role in we we an award for exemplary damages find the evidence insufficient find that the Diocese under the circumstances for was presented significantly short of what is normally described negligent in its to supervision the conduct of its as wanton or make such an of H B employees falls reckless CONCLUSION Accordingly we reverse the plaintiffs suit against the Diocese plaintiffs in the amount of consortium are assessed The claim for to judgment We 5 000 00 in of the trial court dismissing the hereby render judgment in favor of the general damages exemplary damages is denied the Catholic Diocese of Baton Rouge REVERSED AND RENDERED 14 and All 1 500 00 for loss of costs of this appeal STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0742 S K J B on BEHALF OF THE MINOR CHILD H B VERSUS @ CATHOLIC DIOCESE OF BATON ROUGE ET AL HUGHES J I respectfully to seems me concurring concur the school While I placed the therefore the school should be liable overly generous soon as possible considering all factors generally aide in agree with the an untenable While I find the I will concur as is best for the young persons involved majority it position and damage award ending this to be matter as

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