NELSON V. TURNER
TORTS: Dismissal remanded on school personnel’s duty to report due to failure to include lower court’s reasoning in summary judgment
PUBLISHED: VACATING AND REMANDING
PANEL: CLAYTON PRESIDING; MOORE CONCURS; COMBS CONCURS IN PART, DISSENTS IN PART
DATE RENDERED: 6/6/2008
CA affirms in part and vacates and remands in part entry of SJ against parent regarding claims of negligent supervision and failure to report sexual assault.
Nelson’s 5-year-old daughter was in kindergarten at a public elementary school in Fayette County; her teacher was Turner. The child reported to her mother a sexual assault against her by another female kindergarten student during regular school hours. Nelson reported the incident to Turner, who took steps to advise the teaching assistant to keep the children separated; to admonish the other child; to assign the children seats; and to prevent them from attending the restroom at the same time. Turner made no report to local law enforcement officials. That same day, the child reported another assault; the teacher questioned the other child, who admitted the contact. Turner unsuccessfully sought out a school administrator for advice as to how to handle the situation. No report was made to local law enforcement. Nelson spoke to the principal the following day. The principal immediately investigated and believed the contact had occurred "by accident" and did not report the incident to authorities. At the end of that same school day, the child reported another, more extensive, sexual assault against her by the same student, which allegedly occurred in the classroom. Nelson to the child to a hospital for an exam where some small irritation of the vagina was noted. Medical personnel reported the incident to police. The child did not return to school and an internal investigation followed.
Nelson filed suit against KSBIT alleging unfair claims settlement practices; failure to timely respond and complete an investigation; unfair or deceptive acts; and several other claims, including intention infliction of emotional distress. This action was dismissed, but Nelson immediately filed an amended complaint renewing these claims and also alleging failure to supervise and report the abuse against Turner and the Board. Nelson also alleged outrageous conduct. Defendants alleged governmental and qualified official immunity. Turner contended her supervision was a discretionary act and she was not required to report under KRS 620.030.
As to Turner’s duty to report, CA remands to the TC because, though the court found the duty to report to be discretionary, the opinion did not include the court’s reasoning for the CA to review. CA affirms as to the dismissal of the outrage claim. CA cannot affirm the dismissal of bad faith against KSBIT until Turner’s liability is established.
Digested by John Hamlet
Digested by John Hamlet