Edson v. Barre Supervisory Union #61

Edson v. Barre Supervisory Union #61 (2006-166)

2007 VT 62

[Filed 20-Jul-2007]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2007 VT 62

                                No. 2006-166


  Janice Edson                                   Supreme Court

                                                 On Appeal from
       v.                                        Washington Superior Court


  Barre Supervisory Union #61                    February Term, 2007
  and Barre City

  Helen M. Toor, J.

  Philip H. White and Kathleen B. O'Neill of Wilson & White, P.C.,
    Montpelier, and  John L. Franco, Burlington, for Plaintiff-Appellant.

  Thomas Hayes and Bonnie B. Shappy of Hayes & Windish, Woodstock, for
    Defendant-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  JOHNSON, J.   In this wrongful death action, plaintiff Janice
  Edson alleges that administrators and teachers of Spaulding High School
  (collectively, "Spaulding") breached their duty of care and supervision to
  her daughter, DeAndra Florucci, when DeAndra left the school without
  authorization and was subsequently murdered.  The trial court granted
  summary judgment to Spaulding, finding that Spaulding did not owe a duty of
  supervision to DeAndra under the circumstances and that any action or
  inaction by Spaulding was not the proximate cause of DeAndra's death.  We
  affirm.
   
       ¶  2.  DeAndra Florucci began her second year at Spaulding High
  School in the fall of 2000.  She was fifteen years old and had a history of
  truancy and drug abuse.  On the morning of October 25, she arrived at
  school with a note from her mother excusing her from class for an 11:30
  a.m. doctor's appointment.  Her friend, a student from another school, was
  "shadowing" her at school that day. 

       ¶  3.  While DeAndra and and her friend were at the doctor's
  appointment, Donald Baumgardner, a nonstudent, entered the high school
  looking for DeAndra.  At the main office, he asked to see her and was told
  that he could leave a note for her.  After filling out a student-message
  form, Baumgardner exited the building.  Shortly thereafter, an assistant
  principal noticed Baumgardner entering through the vocational-center
  entrance at the rear of the school.  The assistant principal asked why he
  was still at the school, and Baumgardner answered that he was waiting to
  see if his note was delivered to DeAndra.  The assistant principal told
  Baumgardner that he had to leave and escorted him toward the main exit. 
  While the assistant principal was walking Baumgardner toward the exit, the
  bell rang, indicating a class change, and the halls filled with students. 
  The influx of students diverted the assistant principal's attention,
  leaving Baumgardner unaccompanied.
   
       ¶  4.  As Baumgardner was approaching the main exit, DeAndra and her
  friend returned to school from the doctor's appointment.  The three ran
  into one another in the school lobby and began to talk.  The assistant
  principal approached the group and asked DeAndra if the conversation was
  friendly; she replied that it was.  The assistant principal then instructed
  DeAndra and her friend to return to class and directed Baumgardner to leave
  the school.  Upon realizing that DeAndra had returned from an early
  dismissal, the assistant principal also instructed her to check in with the
  guidance office.  DeAndra responded that she needed something from her
  locker and walked in that direction.  Unbeknownst to the assistant
  principal, DeAndra failed to check in with the guidance office, and instead
  left school with her friend and Baumgardner through the rear exit. 

       ¶  5.  As they walked away from the school, Baumgardner told DeAndra
  that an acquaintance of theirs, Dana Martin, wanted to speak with her at
  his house.  She agreed to accompany Baumgardner there, and left her friend
  to wait on some steps as they headed toward Martin's home.  DeAndra did not
  return, however, and the police were eventually notified.  DeAndra's body
  was subsequently found under a bridge in Plainfield.  Martin confessed to
  sexually assaulting and murdering DeAndra, acknowledging that he had
  conceived the crime sometime late the night before or early the same
  morning.

       ¶  6.  Plaintiff filed a wrongful death suit against Spaulding in June
  2003.  She alleged that Spaulding was negligent in its supervision of
  DeAndra, and that its omissions led directly to DeAndra's sexual assault
  and murder.  In November 2004, Spaulding moved for summary judgment
  claiming that plaintiff failed to assert any material facts establishing a
  duty on the part of the school and that even assuming a duty and breach
  thereof, there was no proximate causation between Spaulding's actions and
  DeAndra's death.(FN1)  The trial court granted the motion in January 2006,
  finding that: (1) Spaulding "owed no duty to protect against an
  unforeseeable risk," and (2) its "actions were not the proximate cause of
  DeAndra's death."   
   
       ¶  7.  Plaintiff appeals, claiming that a reasonable jury could find
  Spaulding liable for DeAndra's death.  Specifically, she alleges that
  Spaulding: (1) had a duty to exercise reasonable care to prevent DeAndra
  from leaving the school campus and to implement its visitor policy with
  regard to Baumgardner, (2) breached the duty of care it owed DeAndra, and
  (3) should have foreseen that harm would befall DeAndra under these
  circumstances.

       ¶  8.  We review a summary judgment decision de novo.  Mellin v. Flood
  Brook Union Sch. Dist., 173 Vt. 202, 211, 790 A.2d 408, 417 (2001). 
  Summary judgment is proper where there is no genuine issue of material fact
  and the moving party is entitled to judgment as a matter of law.  Peerless
  Ins. Co. v. Frederick, 2004 VT 126, ¶ 10, 177 Vt. 441, 869 A.2d 112. 
  Furthermore, when a party fails, after adequate discovery, to make a
  showing sufficient to establish an element essential to her case and on
  which she has the burden of proof, summary judgment is required.  Poplaski
  v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326, 1329 (1989).  

       ¶  9.  In reviewing the trial court's summary judgment decision, the
  issue is whether a school, or its officials, may be held liable for
  negligent supervision when a student impermissibly leaves school grounds
  and is subsequently the victim of a premeditated crime.  School officials
  may be held liable only to the extent that they owe their students a duty
  of care, and whether a duty exists upon which liability may be claimed is a
  matter of law to be decided by the Court.  See  Sorge v. State, 171 Vt.
  171, 174, 762 A.2d 816, 818 (2000); Restatement (Second) of Torts § 328B(b)
  (1965).  In Vermont, the standard of care that schools and their officials
  must exercise in supervising students is governed by statute.  The
  duty-of-care statute provides that:

         (a)  Each school district and its employees owe its students
    a duty of ordinary care to prevent the students from being exposed
    to unreasonable risk, from which it is foreseeable that injury is
    likely to occur.                                                   

         (b)  School districts and their employees do not owe their
    students a duty of immediate supervision at all times and under
    all circumstances.

  16 V.S.A. § 834.  To date, we have not had opportunity to construe the
  limits of this statutory duty, and thus we look to the common law, to the
  extent that it is consistent with the statutory language, to determine the
  scope of the legal duty at issue here.  See  State v. Marcy, 165 Vt. 89,
  104-05, 680 A.2d 76, 85 (1996) (this Court presumes that Legislature
  intended to codify common law unless  statutory language clearly and
  unambiguously indicates otherwise). 

       ¶  10.  Section 834(a) defines the duty owed by a school to its
  students, in part, as one of "ordinary care."  Under our common law,
  "ordinary care" requires individuals to act as the reasonably prudent
  person would under the circumstances.  LaFaso v. LaFaso, 126 Vt. 90, 93-94,
  223 A.2d 814, 817-18 (1966).  Furthermore, the statute limits schools' duty
  of supervision in scope, to protect students only from "unreasonable risk,
  from which it is foreseeable that injury is likely to occur."  16 V.S.A. §
  834(a) (emphasis added).  This is consistent with our common law, under
  which the degree of care that a reasonably prudent person would exercise,
  and thus the scope of the legal duty of ordinary care, is determined by the
  foreseeability of the consequences of an individual's acts or omissions. 
  LaFaso, 126 Vt. at 94, 223 A.2d  at 818.  Thus, neither our common law, nor
  the duty-of-care statute, holds individuals liable in negligence for
  consequences that a reasonably prudent person could not have foreseen or
  anticipated under the circumstances.
   
       ¶  11.  In the specific context of schools, the common law provides
  additional guidance in defining the scope of the statutory duty of
  supervision.  To a limited extent, school officials stand in loco parentis
  to pupils under their charge, and as such, may exercise the "portion of the
  powers of the parent" over students that is necessary to carry out their
  primary function as educators.  Eastman v. Williams, 124 Vt. 445, 448, 207 A.2d 146, 148 (1965).  As § 834(b) makes clear, however, school districts
  and their employees do not owe an absolute duty of supervision to students. 
  Thus, the duty of supervision is limited both by statute and by the common
  law, which requires schools to protect students only from foreseeable
  risks, and only to the extent necessary to carry out their educational
  purpose.  Nonetheless, where school administrators or teachers fail to
  exercise ordinary care in supervising students, they may be held liable to
  the extent their acts or omissions are the proximate cause of a student's
  injury.  Eastman, 124 Vt. at 448, 207 A.2d  at 148. 

       ¶  12.  To overcome summary judgment, plaintiff here must make a
  showing sufficient to establish that Spaulding owed a legal duty to prevent
  DeAndra from voluntarily leaving school grounds and ultimately falling
  victim to Martin's premeditated crime.  See Poplaski, 152 Vt. at 254-55,
  565 A.2d  at 1329.    Plaintiff contends that Spaulding's duty under 16
  V.S.A. § 834 included the duty to implement attendance and visitor policies
  that would ensure DeAndra remained on school grounds, thereby protecting
  her from Martin.  While plaintiff concedes that foreseeability of harm
  gives rise to the duty of supervision articulated both in our common law
  and statutes, she asserts that this "concept of foreseeability refers to
  generalized risks of the type of incidents and injuries that occurred
  rather than predictability of the actual sequence of events."  Fazzolari v.
  Portland Sch. Dist., 734 P.2d 1326, 1338 (Or. 1987).  As such, she asks us
  to construe the duty imposed on schools by § 834 as one of protection
  against any risk from which it is foreseeable that some type of harm might
  occur. 
   
       ¶  13.  Unlike the trial court, we leave open the possibility that
  there exist circumstances under which a school might be held liable for
  negligent supervision even where a student leaves school grounds
  voluntarily and without permission, as DeAndra did here.  We cannot,
  however, agree with plaintiff that the foreseeability of any potential risk
  of harm to DeAndra if she left campus unauthorized was enough to trigger a
  legal duty on the part of Spaulding to protect her under these
  circumstances.  DeAndra's death was a result of the premeditated criminal
  act of a third party.  In general, crimes committed by a third party fall
  within the realm of the unforeseeable, and therefore cannot form the basis
  for liability.  See, e.g., Estate of Sumner v. Dep't of Soc. and Rehab.
  Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.); Smith v. Day,
  148 Vt. 595, 598, 538 A.2d 157, 159 (1987) (finding university was not
  liable for student's unforeseeable criminal acts).  Although we have held
  that a defendant may be responsible for protecting against the criminal act
  of another, we have done so only where the defendant had special knowledge
  or notice upon which to impose a duty to anticipate the wrongful act. 
  Thus, where the former Department of Social and Rehabilitation Services
  (SRS) failed to protect two sisters from their stepfather - despite several
  reports of sexual abuse by the girls, school officials, and a babysitter,
  as well as an admission by the stepfather - we determined that SRS had a
  duty to anticipate the continued sexual abuse of the girls and could
  therefore be held liable for injuries suffered as a result of the
  stepfather's actions.  Sabia v. State, 164 Vt. 293, 305-06, 669 A.2d 1187,
  1195-96 (1995) (reasoning that SRS had a "special relationship" with the
  girls, by virtue of its statutory duty to protect abused children, that
  required it to prevent wrongful acts of a third party).  On the contrary,
  where a child under the supervision of SRS sexually assaulted and killed a
  cousin with whom he lived, we stated that SRS had no duty to anticipate the
  criminal act, as there were "no allegations that [the child] threatened the
  decedent, or even that he had ever been accused of or adjudicated for any
  delinquent or criminal behavior."  Estate of Sumner, 162 Vt. at 629, 649 A.2d  at 1036.          
   
       ¶  14.  Despite plaintiff's assertion to the contrary, Spaulding did
  not have the requisite knowledge or notice of DeAndra's premeditated murder
  to bring it within the realm of the foreseeable.  See Whitfield v. Bd. of
  Ed., 789 N.Y.S.2d 188, 189 (App. Div. 2005) (holding that plaintiff must
  demonstrate that school officials "had sufficiently specific knowledge or
  notice of the dangerous conduct which caused injury" to establish claim
  against school).  Unlike Fazzolari, where school officials' awareness of a
  generalized risk of sexual assault in the vicinity of the school was enough
  to fulfill the foreseeability requirement for liability, the record here is
  devoid of evidence upon which to impute knowledge to Spaulding.  Cf.
  Fazzolari,  734 P.2d  at 1338 (determining that reasonable factfinder could
  find sexual assault on school grounds to have been a foreseeable risk where
  a woman was reportedly sexually assaulted on the grounds fifteen days
  earlier and there were allegations of other attacks as well).  There is no
  allegation that Spaulding was or should have been aware of such criminal
  conduct perpetrated near its campus, let alone that it knew of Martin,
  DeAndra's murderer, his association with Baumgardner, or his propensity to
  commit such heinous acts.  See Chavez v. Tolleson Elementary Sch. Dist.,
  595 P.2d 1017, 1023 (Ariz. Ct. App. 1979) (finding no duty to protect
  against murder of student who wandered off school grounds unauthorized
  where there were "no facts in the record indicating that school personnel
  should have been aware of the potential of criminal conduct in the area"). 
  Absent more specific notice of the impending crime, Spaulding had no legal
  duty to, and in all practicality could not, prevent her death.     
   
       ¶  15.  Nor did Spaulding owe an elevated duty of care to DeAndra by
  virtue of her age, immaturity, or previous indiscretions, as plaintiff
  suggests.  Although school officials are required to take into
  consideration a student's age, situation, and disposition in exercising
  reasonable care, these factors do not raise the duty owed under § 834
  beyond one of ordinary care. See Bridge v. Woodstock Union High Sch. Dist.,
  127 Vt. 598, 599, 255 A.2d 683, 684 (1969).  Rather, school officials must
  simply act as the reasonably prudent person would in supervising students
  of similar age and maturity.  See 16 V.S.A. § 834(a) (mandating that school
  districts exercise ordinary care in protecting students from unreasonable
  risk).  "In dealing with children, [the duty of ordinary care must] include
  consideration of their inability to protect themselves, and their childish
  indiscretions, instincts and impulses," to the extent that these
  considerations affect the scope of foreseeable risks to the children. 
  Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473, 480, 708 A.2d 924, 928
  (1998) (quotation and modification omitted).  Thus, a school district might
  be held liable where a six-year-old child leaves school unattended, darts
  into the road and is severely injured, precisely because the reasonably
  prudent person would foresee that a child of such tender years lacks the
  discretion to stop and look both ways before crossing the road.  Here, on
  the other hand, Spaulding was no more or less likely to anticipate, much
  less prevent, DeAndra's brutal assault and murder because she was a
  fifteen-year-old with a history of truancy and drug abuse.  Cf. Estate of
  Sumner, 162 Vt. at 629, 649 A.2d  at 1036 (holding that child's history of
  drinking, getting into fights, and engaging in sexual relations was
  insufficient as a matter of law to show SRS should have foreseen he was
  capable of raping and murdering decedent).  
   
       ¶  16.  Furthermore, Spaulding's duty of supervision is limited in
  scope to the extent necessary to carry out its educational mandate as a
  public school.  See Eastman, 124 Vt. at 448, 207 A.2d  at 148.  Elevating
  the duty of care to ensure that students with known truancy, drug abuse, or
  other behavioral problems remain on campus would not only be financially
  and logistically burdensome, but would likely detract from schools' primary
  purpose by diverting significant resources from education to security.  Cf.
  Palella v. Ulmer, 518 N.Y.S.2d 91, 93 (Sup. Ct. 1987) (stating that it
  would be intolerably burdensome to require schools to ensure that students
  remain on campus).  Under the circumstances of this case, nothing short of
  continuous, immediate supervision would have prevented DeAndra from
  voluntarily leaving school and going to Martin's home.  By enacting 16
  V.S.A. § 834, the Legislature made clear that the standard of care owed to
  students is one of only "ordinary care" and that Vermont schools are
  neither equipped nor expected to provide such constant supervision to
  students, even those with a troubled history. 

       ¶  17.  On the record before us, we can discern no basis upon which
  plaintiff may proceed with her claim against Spaulding.  Regardless of the
  adequacy of Spaulding's attendance and visitor policies, the duty of
  supervision owed by schools to their students under Vermont law is not so
  broad as to require a school to protect its teenage students from
  unforeseeable harms such as occurred here.  As a matter of law, plaintiff
  has failed to assert material facts establishing the existence of a legal
  duty under these circumstances, and we therefore uphold the trial court's
  grant of summary judgment in favor of Spaulding.  See Poplaski, 152 Vt. at
  254-55, 565 A.2d  at 1329.       

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________  
                                       Associate Justice

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                                 Concurring
        
       ¶  18.  REIBER, C.J., concurring.  I join the Court's holding that
  plaintiff has failed to establish a legal duty on the part of the school to
  prevent the tragic harms that befell DeAndra Florucci on October 25, 2000. 
  I write separately, however, to emphasize that our holding rests purely on
  the lack of foreseeability of those harms, and that this opinion in no way
  endorses Spaulding's actions with respect to Baumgardner.  That school
  officials took steps to facilitate contact between Baumgardner, a stranger
  to the school, and DeAndra, a young and troubled student, without inquiring
  into his identity, relationship to DeAndra, or purpose in making contact,
  seems a questionable practice at best.  As a general matter, I have no
  doubt that the safety of students like DeAndra would be enhanced by a more
  probing visitor policy than the one carried out here.  I also do not doubt
  that, under different facts, similar laxity in an attendance or visitor
  policy might form the basis for school liability.


   
                                       _____________________________________
                                       Chief Justice


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                                  Footnotes

FN1.  Barre City was also named as a defendant in the complaint; however, the
  City is not a party to this appeal.  The motion for summary judgment
  decided by the trial court, and at issue here, was filed by Barre
  Supervisory Union #61 on behalf of Spaulding only.