AUSTIN SANCHEZ, by and through his next friend and natural guardian, AMY SANCHEZ, and AMY SANCHEZ, individually, Appellants,
UNIFIED SCHOOL DISTRICT 469, Appellee, and KERRY BRUNGARDT, MICHEL JEFFRIES, CODY SCHMITENDORF, ALAN SCHMITENDORF, BEVERLY SCHMITENDORF, and RICHARD JEFFRIES, Defendants
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Appeal from Leavenworth District Court; DAVID J. KING, judge.
BY THE COURT
1. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate.
2. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom a summary judgment ruling is sought.
3. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact.
4. Interpretation of a statute is a question of law over which appellate courts have unlimited review.
5. The Paul D. Coverdell Teacher Protection Act of 2001, 20 U.S.C. § 6731 (2012) et seq., immunizes teachers from liability when they take reasonable actions to maintain order, discipline, and an appropriate educational environment.
6. " Teacher" is defined in the Paul D. Coverdell Teacher Protection Act to include a teacher, instructor, principal, administrator, educational employee who works in a school, or individual school board member. 20 U.S.C. § 6733(6) (2012).
7. The Paul D. Coverdell Teacher Protection Act provides that no teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if the teacher was acting within the scope of the teacher's employment or responsibilities to a school or governmental entity; the actions of the teacher were carried out in conformity with federal, state, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school; and the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher. 20 U.S.C. § 6736(a)(1), (2), and (4).
8. The protection provided by the Paul D. Coverdell Teacher Protection Act extends only to individual teachers, administrators, and school board members and does not provide protection from liability to entities like a school board or a school district.
9. Under the doctrine of respondeat superior, an employer may be held liable to a third person for injuries caused by the negligence of an employee if the employee is acting within the scope of employment.
10. An employer is generally relieved of liability under a theory of respondeat superior when a legal or factual determination has been made that the employee did not act negligently.
11. Statutory immunity from liability granted by the legislature to an employee is personal to the employee and, in the absence of a clear legislative statement to the contrary, does not shield the employer from liability under a theory of respondeat superior.
12. The Kansas Tort Claims Act makes governmental liability the rule and immunity the exception. Under K.S.A. 2013 Supp. 75-6103(a), each governmental entity is liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. Various exceptions to the general rule of liability are set forth in K.S.A. 2013 Supp. 75-6104. The burden is upon the defendant to establish immunity under one or more of the immunity exceptions.
13. A school district has a duty to reasonably protect elementary and secondary students in its custody during school hours.
14. The exception to government tort claim liability based on adoptive immunity as outlined in K.S.A. 2013 Supp. 75-6104(i) is discussed and applied to a school district in light of the Paul D. Coverdell Teacher Protection Act.
Paul Hasty, Jr. and Kathryn M. O'Shea, of Hasty & Associates, L.L.C., of Overland Park, for appellants.
Teresa L. Watson and Terelle A. Mock, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, for appellee.
Before STANDRIDGE, P.J., GREEN and ATCHESON, JJ.
Amy Sanchez, individually and as next friend of her son, Austin Sanchez (Plaintiffs), sued Unified School District No. 469 (USD 469); Kerry Brungardt, the Lansing Middle School principal; and two students and their parents seeking damages allegedly resulting from the students' bullying of Austin. Eventually, the only claim that remained was Plaintiffs' claim of negligent supervision against USD 469 and Brungardt. The district court granted summary judgment in favor of Brungardt pursuant to the immunity provided in the Paul D. Coverdell Teacher Protection Act of 2001 (the Coverdell Act or the Act), 20 U.S.C. § § 6731-6738 (2012), and in favor of USD 469 based on principles of respondeat superior liability and the adoptive immunity provision of the Kansas Tort Claims Act (KTCA), K.S.A. 2013 Supp. 75-6104(i). Plaintiffs appeal only from the district court's decision to grant summary judgment in favor of USD 469.
In the fall of 2011, Austin Sanchez, Cody Schmitendorf, and Michel Jeffries were seventh-grade students at Lansing Middle School, part of USD 469. Kerry Brungardt was the principal of the middle school and had held that position since 1998. Brooks Jenkins was the vice principal of the middle school. The school had a zero-tolerance bullying policy in effect in the fall of 2011. Austin, Cody, and Michel each acknowledged receipt of information about bullying from presentations at the school.
Austin was new to the middle school in 2011 and did not know anyone there when the school year began. Austin claimed that a few weeks after school started, Cody began bullying him by pushing him and making fun of his height and his " 'lazy eye.'" On one occasion, Austin saw his sister, her friend, and Cody walking toward him as he was walking away from the building after school. Upon approach, Cody hit Austin with a water bottle, pushed him, put him into a headlock, and twice threw him to the ground. On another occasion, Cody confronted Austin outside the Lansing 4H building during an after-school party for the football team. According to Austin, Cody got mad about something, pulled out a pocket knife, and threatened to stab Austin. Austin told his mother, Amy, about both incidents. Austin also claimed that Cody would tell other students in the commons area before school that he was going to " kick Austin's ass." Cody said this 5 to 10 times, often loud enough for Austin to hear; sometimes Austin heard these threats from other students.
On October 25, 2011, Amy notified the police that Cody was physically bullying Austin. An officer met with Cody and his father. The ...