NELSON (BROOKE), ET AL. VS. KENTUCKY SCHOOL BOARDS INSURANCE TRUST , ET AL.
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RENDERED: APRIL 30, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001588-MR
BROOKE NELSON, INDIVIDUALLY;
AND BROOKE NELSON, AS
NEXT FRIEND OF F.B., A MINOR
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 06-CI-00976
KENTUCKY SCHOOL BOARDS INSURANCE
TRUST; DIANNE TURNER; FAYETTE COUNTY
PUBLIC SCHOOLS; AND FAYETTE COUNTY
BOARD OF EDUCATION
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
STUMBO, JUDGE: Brooke Nelson, individually, and as next friend of F.B.,
appeals from an Order of the Fayette Circuit Court dismissing her claim against
Diane Turner, individually, and in her capacity as a public school teacher, and
against the Kentucky School Boards Insurance Trust (“KSBIT”). Nelson asserted
a claim on behalf of F.B. alleging that F.B. was sexually abused by a female
classmate named C.Y., and that Turner committed the tort of negligent supervision
and improperly failed to report the allegation as required by statute.1
Nelson’s claims against KSBIT arose out of several alleged instances
of bad faith on its part, as well as its refusal to investigate F.B.’s claims. Nelson
also claimed that KSBIT failed to communicate with her or her counsel, and
improperly failed to seek a timely resolution of the dispute. Nelson’s claims
against the Fayette County Public Schools and the Fayette County Board of
Education were previously dismissed. Nelson now appeals from the circuit court’s
determination that Turner was entitled to Summary Judgment. The circuit court
based this determination on its conclusion that Turner was shielded by qualified
official immunity because her duty to report the alleged sexual abuse is properly
characterized as discretionary rather than ministerial. Because KRS 620.030 uses
mandatory “shall” language to describe the reporting requirement, and since a
motion for Summary Judgment requires the record to be viewed in a light most
favorable to the non-movant, we reverse the Order of the Fayette Circuit Court and
remand for further proceedings.
In November 2005, five-year-old F.B. was registered as a
kindergarten student in Turner’s class at a public elementary school in Fayette
1
This is Appellant’s second appeal to this Court. Nelson v. Turner, 256 S.W.3d 37 (Ky. App.
2008)
2
County.2 On November 16, of that same year, F.B. was allegedly sexually
assaulted in the classroom during regular school hours by a female classmate,
C.Y., who was also enrolled in Turner’s class. F.B. described the incident to
Nelson two days after it had occurred. Nelson then telephoned Turner and
reported that F.B. had complained that C.Y. had “put her finger up my butt” at
school.
According to Turner, Nelson described a situation where F.B. had
complained that C.Y. had been “up her butt,” and she testified that she understood
from this conversation that C.Y. had sexually assaulted F.B. Turner did not feel
that Nelson was greatly upset as she related the incident described by F.B.
Nevertheless, she assured Nelson that she would separate the children.
Turner’s telephone conversation confirmed for Nelson her own
impression that F.B. and C.Y. played together quite frequently at school. On the
morning of Monday, November 21st, Turner advised her teaching assistant that
F.B. and C.Y. would no longer be allowed to be close to one another. She also
admonished C.Y. that touching someone’s bottom was wrong. In an effort to keep
the children apart, Turner assigned them specific seats and forbade them from
attending the restroom at the same time.
After the lunch period on November 21, 2005, F.B. told Turner that
C.Y. had been “up my butt” in the classroom during a reading group, but F.B. did
not appear upset. While Turner was still unsure of what the contact involved, she
2
We have adopted in large part the factual recitation as set out in Turner’s prior appeal.
3
immediately questioned C.Y., who admitted that she had touched F.B. Turner left
the children in her assistant’s care and attempted to locate a school administrator
for advice. Unable to find the school principal, Turner eventually carried on with
her instructional duties. C.Y. did not return to the classroom that day. Turner
would later state that she did not find it plausible that C.Y. could engage in
inappropriate behavior with F.B. when a teacher (Turner) and teacher’s assistant
were present at all times during the reading group.
Nelson testified that during the evening hours of November 21st, F.B.
reported to Nelson’s sister, Bridget, that C.Y. had stuck her finger into F.B.’s
genitals. Nelson discussed the incident with F.B. on the morning of November
22nd. Nelson was unable to meet with the principal, Frieda Collins, but
telephoned her that afternoon. Collins related to Nelson that she knew nothing
about the situation, but indicated that she would address it immediately by having
both children report to her office for a talk. Following the conference, Collins
reported to Nelson that C.Y. had admitted that she had accidentally touched F.B.
between the legs, but that they denied that C.Y. had put her finger up F.B.’s
bottom. Collins indicated to Nelson that she would continue her investigation.
Concluding that the incidents were accidents, Collins did not report the matter to
the authorities.
After school on November 22, F.B. allegedly told Nelson that C.Y.
had pushed her into a table, had rubbed and pinched her nipples, and had touched
her anus and vagina. Nelson took F.B. to the University of Kentucky Medical
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Center for a physical examination. Doctors there noted “some small irritation of
the vagina” and advised Nelson that she would need to speak to a social worker
about the events described by F.B. University medical personnel reported the
incident to police. Nelson removed F.B. from enrollment in the Fayette County
Public Schools, and an internal investigation followed.
On March 3, 2006, Nelson filed an action against KSBIT. In her
complaint, Nelson alleged that KSBIT had violated several portions of the
Kentucky Insurance Code (“KIC”) by engaging in unfair claims settlement
practices; failing to timely respond to the claimant; failing to timely complete an
investigation of the matter; engaging in unfair or deceptive acts; failing to
acknowledge and to act promptly upon communications regarding the claimant;
failing to adopt and to implement standards for the prompt investigation of claims;
refusing to pay the claim; and failing to provide a reasonable explanation of the
basis for the denial of the claim or of the lack of an offer of a compromise
settlement. Nelson also asserted a claim of intentional infliction of emotional
distress against KSBIT. She sought both compensatory and punitive damages.
Following a hearing on KSBIT’s motion seeking dismissal of the
claims, the trial court ruled that the action would be dismissed without prejudice.
Before the court’s written order was entered by the clerk, however, Nelson filed a
motion to amend the complaint. In an order entered on May 11, 2006, the trial
court permitted Nelson to file an amended complaint.
5
In her amended complaint, Nelson renewed her allegations against
KSBIT and also included new and separate allegations against Turner and the
Fayette County Board of Education. Nelson alleged that Turner failed to exercise
ordinary care to supervise the children in her classroom and to report to
enforcement officials the sexual assault perpetrated by C.Y. as required by KRS
620.030. Under common law principles of agency, Nelson alleged that the Board
was vicariously liable for damages caused by Turner’s failure to protect F.B. from
harm. Finally, Nelson claimed that Turner’s inappropriate response to the situation
amounted to outrageous conduct. She sought compensatory and punitive damages
along with attorneys’ fees, costs and expenses.
Each of the named defendants answered and denied Nelson’s
substantive allegations. In addition, Turner and the Board contended that they
were entitled to the protections of governmental and qualified official immunity.
On January 19, 2007, following a period of extensive discovery,
Turner and the Board filed a motion for Summary Judgment. In the memorandum
supporting the motion, Turner and the Board argued that they were entitled to
judgment as a matter of law. The Board contended that it could not be sued in tort
since it is shielded by governmental immunity and that it could not be held
vicariously liable for Turner’s alleged failure to protect F.B. under firmly
established legal principles.
Turner contended that her supervision of F.B. was undertaken in good
faith and as part of her discretionary functions as a primary school teacher. She
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argued that under these circumstances, she was entitled to qualified official
immunity from liability. Turner also argued that she was not required by the
provisions of KRS 620.030 to make a report of the alleged assault to any local law
enforcement agency. Regardless of any arguable applicability of the statute, she
contended that it did not create a private right of action enforceable by Nelson.
Finally, Turner argued that Nelson could not establish a prima facie case to support
the allegation of outrageous conduct. Nelson opposed the motion for Summary
Judgment and submitted her own memorandum in support of her position.
On February 6, 2007, KSBIT filed a motion to dismiss the action
against it. KSBIT reasoned that since Turner and the Board were entitled to
judgment as a matter of law, no claims predicated upon its bad faith with respect to
the claim could survive since its alleged bad faith was wholly derivative of a
viable, underlying cause of action.
Following a hearing, the Fayette Circuit Court determined that Turner
and the Board were entitled to claim the shield of immunity and that they were
entitled to judgment as a matter of law. The court entered judgment in their favor
on March 1, 2007. Agreeing with KSBIT that the claims asserted against it
necessarily failed as a result of the dismissal, KSBIT’s motion to dismiss the action
was granted as well.
Nelson then prosecuted an appeal to this Court. By way of a
published Opinion rendered on June 6, 2008, a panel of this Court affirmed in part,
vacated in part and remanded. The panel determined that the circuit court
7
improperly failed to demonstrate why Turner’s duty to report the alleged abuse
was discretionary - thus entitling her to qualified immunity - rather than ministerial
and thus mandatory. The panel remanded the matter to the Fayette Circuit Court
for a determination of whether Turner’s duty to report was discretionary or
ministerial.
As to the claim against KSBIT, the panel of this Court opined that as
long as questions remain with respect to Turner’s alleged liability in the underlying
negligence action, the question of KSBIT’s obligation to pay the claim could not
be adjudicated as a matter of law. It, therefore, remanded the claim against KSBIT
pending further adjudication of Turner’s underlying claim.
On remand, the Fayette Circuit Court determined that Turner’s duty to
report was discretionary and that, therefore, Turner was shielded by qualified
official immunity. In reaching this conclusion, the circuit court noted that Turner
did not observe the alleged bad acts, and the sole evidence she had before her was
the allegation of five-year-old F.B. and the purported admission of five-year-old
C.Y. The court opined that, “[t]he statute clearly does not require the reporting of
every allegation of sexual abuse or the reporting of mere suspicion.” It went on to
conclude that the circumstances of the allegation required Turner to make a
judgment about what may have happened and to respond accordingly. It
characterized this requirement as falling within Turner’s discretion which left to
her the determination as to whether there was a reasonable cause to believe that
sexual abuse had occurred. Upon determining that Turner’s duty was
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discretionary, the court ruled that Turner was shielded by qualified official
immunity, and that Summary Judgment, therefore, was appropriate as to Nelson’s
claims against both Turner and KSBIT. This appeal followed.
Nelson now argues that the Fayette Circuit Court improperly
dismissed the action against Turner. She maintains that KRS 620.030 clearly
establishes that reporting alleged sexual abuse is a mandatory requirement and is
not left to a teacher’s discretion. Nelson also contends that even if the reporting of
alleged sexual abuse were properly characterized as discretionary, Turner is still
not shielded by qualified immunity. She directs our attention to KRS 620.030,
which she argues clearly provides for mandatory reporting and which evinces a
public policy which errs, if at all, in favor of protecting children.3 In sum, Nelson
maintains that Turner breached her statutory duty to report the allegation and that
Summary Judgment, therefore, was not appropriate.
KRS 620.030(1) states that,
Any person who knows or has reasonable cause to
believe that a child is . . . abused shall immediately cause
an oral or written report to be made to a local law
enforcement agency or the Department of Kentucky State
Police; the cabinet or its designated representative; the
Commonwealth’s attorney or the county attorney; by
telephone or otherwise.
3
The purpose of KRS 620.030(1) is to put abused children in a position to seek and receive
appropriate counseling and medical treatment. C.Y. admitted touching F.B. to Collins and
Turner apparently felt the situation serious enough to separate the children. While a child the
age of C.Y. is unlikely to be criminally prosecuted, this behavior cries out for treatment of both
children. To allow a teacher to exercise her discretion and remain silent is detrimental to both
children.
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We are persuaded by Nelson’s claim of error for two reasons. First,
we both acknowledge and concur with the holding in Nelson’s first appeal that
KRS 620.030(1) sets out a “mandatory reporting requirement . . . .” The
Legislature’s usage of the mandatory “shall” language evinces its intent that a
person who has reasonable cause to believe that a child has been abused has no
discretion on the question of whether the alleged abuse must be reported. See also,
Commonwealth v. Allen, 980 S.W.2d 287, 280 (Ky. 1998), holding that, “[t]he
language of KRS 620.030(1) is clear and unambiguous. All individuals with
firsthand knowledge or reasonable cause to believe that a child is abused have a
mandatory duty to report that abuse.” Because the reporting requirement of KRS
620.030(1) is mandatory, Turner is not protected by qualified immunity. Allen,
supra.
The central issue now before us, however, is whether the circuit court
properly determined that Summary Judgment was appropriate. Summary judgment
“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” CR 56.03. “The record must be viewed in a light most
favorable to the party opposing the motion for summary judgment and all doubts are to
be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476, 480 (Ky.1991). “Even though a trial court may believe the party opposing the
motion may not succeed at trial, it should not render a summary judgment if there is any
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issue of material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine issues as
to any material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
When viewing the record in a light most favorable to Nelson and
resolving all doubts in her favor, we must conclude that - for purposes of the
Summary Judgment motion only - Turner had a reasonable cause to believe that
F.B. was abused. On November 16, 2005, Nelson telephoned Turner and reported
that F.B. had complained that C.Y. had “put her finger up my butt” at school.
After the lunch period on November 21, 2005, F.B. again told Turner that C.Y. had
been “up my butt” in the classroom during reading group. And about one week
later, F.B. told Nelson that C.Y. had pushed her into a table, had rubbed and
pinched her nipples, and had touched her anus and vagina. Principal Collins also
reported to Nelson that C.Y. had admitted that she had touched F.B. between the
legs, though C.Y. claimed that the touching was accidental. It merits noting that
Turner took these allegations seriously. She spoke with Nelson, F.B. and C.Y.
about the matter, physically separated the children in the classroom, and did not
allow them to use the restroom at the same time. Turner also sought to discuss the
matter with Principal Collins, though it is not clear whether any discussion
occurred between the two.
As we are not the trier of fact, we may not determine whether Turner
had a reasonable cause to believe that F.B. was abused for purposes of subsequent
11
proceedings or possible trial. However, for the limited purpose of addressing the
Summary Judgment motion, and in light of the requirement that all doubts be
resolved in favor of Nelson, we must conclude that Nelson rebutted the argument
that no genuine issues remained for adjudication. A genuine issue exists as to
whether the claims reported to Turner are properly characterized as a “reasonable
cause to believe” that F.B. had been abused for purposes of KRS 620.030. As a
general rule, whether a defendant breached a duty is a question of fact for the jury.
Lee v. Farmer’s Rural Elec. Co-op. Corp., 245 S.W.3d 209 (Ky. App. 2007).
Similarly, reasonableness - in this case, whether Turner had a reasonable cause to
believe that F.B. was abused - is also a question of a fact. Brown v. Noland Co.,
403 S.W.2d 33 (Ky. 1966); Davis v. Howard, 276 S.W.2d 460 (Ky. 1955).
Therefore, Summary Judgment was not warranted.
For the foregoing reasons, we reverse the Order of the Fayette Circuit
Court granting Summary Judgment.
WINE, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
THOMPSON, JUDGE, DISSENTING: I respectfully dissent from
the majority opinion which, if left to remain the law in this Commonwealth,
jeopardizes the effectiveness of teachers as they will be held to an insurmountable
standard of legal culpability. I do not doubt that the majority writes with the intent
of protecting children: I am equally distressed by the perpetration of sexual abuse
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against children. However, I believe the majority’s opinion does nothing to rectify
the disturbing increase in the deplorable crime of child sexual abuse but only
subjects a teacher, who acted reasonably under the circumstances, to liability
premised on a misinterpretation of the law.
The majority premises its opinion on KRS 620.030 and its mandatory
language requiring the report of abuse. Absent the application of the statute, the
decision regarding the action to be taken by this teacher would be a discretionary
function and protected by qualified immunity. See James v. Wilson, 95 S.W.3d
875 (Ky. App. 2002). Thus, KRS 620.030 is pivotal to the majority opinion.
Unfortunately, in the first appeal, a panel of this Court held that the
statute was applicable and the only question was whether the duty to report the
alleged sexual abuse was discretionary or ministerial. Because the statute is not
applicable to the present situation, the analysis was faulty and, today, we have the
opportunity to correct that error. However, the majority has chosen to perpetuate
the error.
KRS 620.030 requires that abuse be reported when a person “knows
or has reasonable cause to believe that a child is dependent, neglected or abused.”
When read in conjunction with the definition of “dependent, neglected or abused”
in KRS 600.020(1), it is incontrovertible that the legislature intended to facilitate
the reporting of abuse against a child by a “parent, guardian, or other person
exercising custodial control or supervision of the child.” Yet, the majority ignores
the explicit statutory language and, by implication, holds that a five-year-old child
13
is mentally and legally capable of committing abuse. The flaws in its reasoning are
evident.
I will not prolong my discussion but state three basic points. First, the
five-year-old kindergarten student was not in a supervisory capacity over her
classmate. Moreover, a child under the age of seven is conclusively presumed
incapable of criminal intent. See Davis v. Commonwealth, 967 S.W.2d 574, 581
(Ky. 1998). Finally, a five-year-old child is incapable of acting with the intent of
sexual gratification.
Although the teacher had a duty to exercise a degree of care
commensurate with her position, the performance of that duty was not ministerial.
James, 95 S.W.3d at 908-909. Upon being told about the alleged contact between
the students, she had to assess the situation and make a decision regarding the
action required. The undisputed facts demonstrate the reasonableness of her
actions: (1) she separated the children in the classroom; (2) she did not permit the
children to leave the classroom together to use the restroom; (3) she alerted the
principal regarding the incident; and (4) she discussed the incident with the child.
It is apparent that with total good faith, the teacher acted reasonably
under the circumstances and the only possible theory of liability is a misguided and
labored application of KRS 620.030. I believe the result reached by the majority is
legally and factually unjustifiable.
I would affirm.
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BRIEFS FOR APPELLANTS:
J. Dale Golden
Michael T. Davis
Melissa M. Thompson
Sarah E. Noble
Lexington, Kentucky
BRIEFS FOR APPELLEE,
KENTUCKY SCHOOL BOARDS
INSURANCE TRUST:
Guy R. Colson
Barry M. Miller
Christina L. Vessels
Lexington, Kentucky
BRIEF FOR APPELLEES,
DIANNE TURNER, FAYETTE
COUNTY PUBLIC SCHOOLS AND
FAYETTE COUNTY BOARD OF
EDUCATION:
Mark S. Fenzel
Dana L. Collins
Kevin L. Chlarson
Louisville, Kentucky
15
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