YOLANDA NKEMAKOLAM, as Parent and Next Friend of K.N., et al., Plaintiffs,
ST. JOHN’S MILITARY SCHOOL, Defendant.
MEMORANDUM AND ORDER
John W. Lungstrum United States District Judge
This matter is presently before the Court on the motion by defendant St. John’s Military School for summary judgment (Doc. # 279). The motion is granted in part and denied in part, as set forth herein.
This matter also comes before the Court on plaintiffs’ motion for summary judgment on the affirmative defense of comparative fault (Doc. # 281). That motion is granted in part and denied in part. The motion is granted with respect to the defense as applied to plaintiffs’ claims for intentional infliction of emotional distress and intentional failure to supervise. The motion is otherwise denied.
I. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue of fact is “genuine” if “the evidence allows a reasonable jury to resolve the issue either way.” Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). A fact is “material” when “it is essential to the proper disposition of the claim.” Id.
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Id. (citing Celotex, 477 U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon the pleadings but must “bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof.” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence pertinent to the material issue “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir. 2002).
Finally, the court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
II. Intentional Infliction of Emotional Distress
Eleven plaintiffs (either on their own behalf or through representatives) allege that they were injured while attending defendant St. John’s Military School. Plaintiffs’ claims include a claim under Kansas law for intentional infliction of emotional distress. Defendant seeks summary judgment on that claim as asserted by each plaintiff.
In order to recover on a claim for intentional infliction of emotional distress—a cause of action also known as the tort of outrage—plaintiffs must show that defendant’s conduct was extreme and outrageous. See Valadez v. Emmis Communications, 290 Kan. 472, 477 (2010).
Conduct that rises to the level of tortious outrage must transcend a certain amount of criticism, rough language, and occasional acts and words that are inconsiderate and unkind. The law will not intervene where someone’s feelings merely are hurt. In order to provide a sufficient basis for an action to recover for emotional distress, conduct must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.
See Id . (citing Taiwo v. Vu, 249 Kan. 585, 592-93 (1991)).
Defendant notes plaintiffs’ contention in the pretrial order that defendant committed this tort by placing plaintiffs in close proximity with dangerous students, and it argues that such conduct is not sufficiently outrageous as a matter of law. Defendant has cited no authority to support that argument, however. The Court concludes that a fact question remains for trial concerning whether defendant’s conduct was sufficiently extreme. Plaintiffs have cited evidence that defendant admitted students with prior discipline problems and employed lax admission standards; that students were charged with disciplining other students; that defendant’s administrators had knowledge that students hazed and inflicted physical harm on other students, including branding of students’ skin without their consent; that supervisors tolerated and even witnessed physical abuse by students of other students; that students complained, local police were called on a number of occasions, and that multiple lawsuits alleged physical abuse; and that the supervisors hired by defendant were poorly paid and included individuals with criminal records. Thus, plaintiffs have provided evidence that defendant implemented a system with students imposing physical discipline on other students, had notice that such discipline caused physical harm, and nonetheless failed to protect plaintiffs from such harm. The Court concludes that a reasonable jury could find that such conduct exceeded the bounds of decency and is intolerable in modern society.
Defendant also argues that the causal chain between its conduct and plaintiffs’ injuries was broken by the physical assaults by the particular students, who are not parties to this case. Defendant has provided no authority to support that position, however. Indeed, as defendant is alleged to have wrongfully permitted the physical assaults, the fact of those assaults does not necessarily insulate defendant from liability for plaintiffs’ injuries. See, e.g., Restatement (Second) of Torts § 448 (“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.”) (emphasis added), cited in Citizens State Bank v. Martin, 227 Kan. 580, 589 (1980).
Accordingly, the Court denies defendant’s motion for summary judgment on this basis.
III. Severe Emotional Distress
Defendant also argues that it is entitled to summary judgment on nine plaintiffs’ claims for intentional infliction of emotional distress and negligent infliction of emotional distress, for the reason that those plaintiffs’ emotional distress was not sufficiently severe as a matter of law. To prevail on these claims, a plaintiff must prove that he suffered emotional distress that was severe or extreme. See Valadez, 290 Kan. at 478. “Elevated fright, continuing concern, embarrassment, worry, and nervousness do not by themselves constitute sufficient harm to a plaintiff to warrant the award of damages for outrage.” Id. (citations omitted). Concerning this element, the Kansas Supreme Court has quoted with approval the following excerpt from a treatise:
There is no laundry list of what qualifies as the requisite level of severity [for emotional distress] . . . [I]t is fair to say that headaches, sleeplessness, irritability, anxiety, depression, listlessness, lethargy, intermittent ...