PATTON v. BICKFORD

Court of Appeals of Kentucky.

Sheila PATTON, Administratrix of the Estate of Stephen Lawrence Patton, Appellant v. Davida BICKFORD; Paul Fanning; Ronald “Sonny” Fentress; Jeremy Hall; Angela Mullins; Lynn Handshoe; and Greg Nichols, Appellees.

No. 2012–CA–000598–MR.

— July 19, 2013

Before CLAYTON, LAMBERT, and VANMETER, Judges. Vanessa B. Cantley, Louisville, KY, for Appellant. Michael J. Schmitt, Jonathan C. Shaw, Paintsville, KY, for Appellees Davida Bickford; Paul Fanning; and Ronald “Sonny” Fentress. Neal Smith, Pikeville, KY, for Appellees Jeremy Hall; Angela Mullins; Lynn Handshoe; and Greg Nichols.

OPINION

Sheila Patton, as administratrix of Stephen Lawrence Patton’s estate (referred to as “the Estate”), appeals from the Floyd Circuit Court’s order granting summary judgment in favor of Davida Bickford (referred to as “Principal”), Paul Fanning and Ronald “Sonny” Fentress (collectively referred to as “Superintendents”), and Jeremy Hall, Angela Mullins, Lynn Handshoe, and Greg Nichols (collectively referred to as “Teachers”). For the following reasons, we affirm.

The Estate filed the underlying wrongful death action against the Teachers, Principal, and Superintendents, in their individual capacities, alleging negligence in failing to supervise Stephen Patton and other students at Allen Central Middle School (“ACMS”). The Estate claims that the Teachers, Principal, and Superintendents failed to comply with ACMS’s and Floyd County School Board’s anti-bullying policies and procedures, which resulted in Stephen’s being subjected to constant bullying, and eventually taking his own life.

The Teachers, Principal, and Superintendents moved for summary judgment, which the trial court granted on two grounds: (1) the Teachers, Principal, and Superintendents were entitled to qualified official immunity and (2) Stephen’s act of suicide was an intervening and superseding act which cut off any liability. This appeal followed.

Summary judgment shall be granted only 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 1 56.03. The trial court must view the record “in the 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 Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991) (citations omitted). Further, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482 (citations omitted).

Paul Mazzo v. Town of Fairfield Board of Education: August 20, 2013

Superior Court of Connecticut.

Paul Mazzo v. Town of Fairfield Board of Education

CV126031781S

— August 20, 2013

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 118

FACTS

The defendants have moved to strike those portions of the plaintiffs’ second amended complaint which allege statutory negligence arising out of their alleged failure to comply with the anti-bullying statute, General Statutes § 10–222d et seq.   The plaintiffs, Paul Mazzo and Lorraine Mazzo, brought the present action both individually and on behalf of their daughter, K.M., alleging that K.M. was extensively bullied by another student, S.R., while attending Tomlinson Middle School, culminating in an attack on December 22, 2011, which left her seriously injured.   The defendants claim that the anti-bullying statute does not allow for a private cause of action.   For the reasons stated herein, the court agrees.

The plaintiffs filed a third amended complaint on July 15, 2013, the same day that the court took the papers on the present motion.1  The third amended complaint contains twenty-four counts against the Town of Fairfield Board of Education (negligence, statutory negligence, recklessness, liability pursuant to General Statutes § 10–235, liability pursuant to General Statutes § 7–465);  the Town of Fairfield (liability pursuant to General Statutes § 52–557n, liability pursuant to General Statutes § 7–465); 2  David Title, Superintendent of Schools for the Town of Fairfield (negligence, statutory negligence, recklessness);  Connee Dawson, Principal of Tomlinson Middle School (negligence, statutory negligence, recklessness);  Joshua Marko, Dean of Students at Tomlinson Middle School (negligence, statutory negligence, recklessness);  Vanessa Constanzo; 3  Janet Rainford (vicarious liability, negligence);  Vernon Rainford (vicarious liability, negligence) and S.R., ppa Janet Rainford (recklessness, assault and battery, negligent infliction of emotional distress, intentional infliction of emotional distress).   Title, Dawson, Marko and the Town of Fairfield Board of Education (henceforth defendants) move to strike counts two, four, six and eight of the second revised complaint, which are now counts two, five, eight and eleven of the third revised complaint.   These counts allege that the defendants are liable for negligence for their failure to comply with the anti-bullying statute, General Statutes § 10–222d et seq.   The defendants argue in their memorandum in support that the anti-bullying statute does not allow for a private cause of action.   The plaintiffs argue in their memorandum in opposition that it does so by implication as revised in 2011.   The plaintiffs also submitted a copy of the 2011 bill showing the changes, a question and answer sheet entitled “Bullying Harassment in Connecticut,” which does not clearly indicate its source, and a transcript of the Senate debate on the bill.

APPLICABLE LAW

“The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.”  Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).   In Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 245–46, 890 A.2d 522 (2006), the Supreme Court upheld a trial court’s determination on a motion to strike that a statute did not create a private cause of action.

The defendants argue that the anti-bullying statute does not create a private cause of action because it lacks an explicit statement that it does so and there is a presumption that private causes of action do not exist unless expressly stated.   The plaintiffs argue that in amending the anti-bullying statute in 2011 the legislature added a private cause of action.

“[W]e begin our analysis with the well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute.   In order to overcome that presumption, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the statute ․ In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant.   First, is the plaintiff one of the class for whose ․ benefit the statute was enacted ․ ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?  ․ Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?”  Perez–Dickson v. Bridgeport, 304 Conn. 483, 506–07, 43 A.3d 69 (2012), citing Gerardi v. Bridgeport, 294 Conn. 461, 468–69, 985 A.2d 328 (2010);  see also Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996) (source of factors, referred to as the Napoletano factors), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997), overruled on other grounds by Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 284, 914 A.2d 996 (2007).  “[T]he [plaintiffs] must meet the threshold showing that none of the three factors weighs against recognizing a private right of action ․ The stringency of the test is reflected in the fact that, since this court decided Napoletano, we have not recognized an implied cause of action despite numerous requests.”  (Internal quotation marks omitted.)   Gerardi v. Bridgeport, supra, 294 Conn. 469–70.

New York School Forces Girls to Ask for Lesbian Kiss as Part of Anti-Bullying Campaign!

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

Published on Apr 24, 2013
http://www.wnd.com/2013/04/school-for…
Parents are outraged after their daughters were forced to pretend to be lesbians and ask other girls to kiss them. Despite criticism from the parents, the school’s response was defiant

AC360 – 14-Yr-Old Jamey Rodemeyer Bullied To Death

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

Uploaded on Sep 20, 2011
Anderson Cooper talks with bullying experts Rosalind Wiseman & Rachel Simmons.

February 08, 2012: Ruling that anti-bullying law is unconstitutional is a relief

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

By Star-Ledger Guest Columnist 
Follow on Twitter
on February 08, 2012 at 8:21 AM

By Joy Pullmann

It is rather a relief for New Jersey school districts and students that a state panel has ruled a new anti-bullying law unfunded, and therefore unconstitutional, because the law itself would have constituted bullying, largely outsourcing it to schools.

The law would require schools to appoint “safety teams” of parents, teachers and staff. Both schools and districts would have to designate or hire “anti-bullying coordinators.” Schools would be required to investigate, within one day, every single incident that could be considered bullying; convene meetings with all the parents of the children involved; and file district and state paperwork. Imagine the enormity of such requirements for schools with dozens or hundreds of children, when even facial expressions can count as “bullying.”

The law would require administrators, parents and school board members to take yearly bullying or suicide prevention training. It would even make schools responsible for bullying that took place off-campus and outside of school hours. It would provide mechanisms to encourage school kids to report each other anonymously to the police. The law includes 18 pages of similarly frightening “required components.”

New Jersey enacted this law in justified horror as a result of a Rutgers University student committing suicide after a roommate allegedly videotaped him with another man. But legislators curiously did not apply their law to Rutgers, instead imposing it on K-12 public schools. Anyone with a conspiratorial bent might think they co-opted people’s emotions to serve a preconceived agenda. Clearly, the Legislature’s response is absurdly overdone and counterproductive.

Advocates of these legal labyrinths tell us they’re necessary to protect children from bullying. Obviously, no one wants children or anyone else to commit suicide or even to be called “stupid,” but these advocates are so blinded by their tears that they cannot see that the solutions they propose perpetuate the problem.

Click here to read more.

January 28, 2012: New Jersey school anti-bullying law ruled unconstitutional

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

Posted: Saturday, January 28, 2012 1:15 am | Updated: 8:51 pm, Thu Mar 8, 2012.

By DIANE D’AMICO Education Writer

Sponsors of the state’s tough new anti-bullying law vowed to continue to fight for the law Friday after it was deemed unconstitutional because the state did not provide money to implement it.

Assemblywoman Valerie Vainieri Huttle D-Bergen, a lead sponsor of the Anti-Bullying Bill of Rights, called the decision by the state Council on Local Mandates devastating for bullied children.

“Rest assured we will review the decision thoroughly to find a way to make this law workable for everyone,” she said.

The Council on Local Mandates was created pursuant to the “State Mandate, State Pay” amendment to the New Jersey Constitution. Under the Constitution, if the council so rules, an unfunded mandate ceases to be mandatory and expires.

The council struck down the law as an unfunded state mandate at a hearing Friday based on a complaint filed by the school district in Warren County, according to Vainieri Huttle and a published report in The Record, Bergen County. The council has not yet issued a written decision; the ruling does not take effect until it does.

The state maintained in its response to the complaint that aid provided to school districts would cover the costs of the law and that existing staff could fill the required anti-bullying coordinator and specialist positions.

However, Allamuchy’s board said there were new costs in implementing new anti-bullying programs and providing training, and to pay stipends to staff named to the new positions.

Senate Majority Leader Loretta Weinberg, D-Bergen, another sponsor of the law, said she will work on a revised version, but noted that many districts have implemented the law with no problems and she hoped those efforts would not be abandoned.

“It is extremely disappointing that something as common sense as protecting our kids and making school a safe, nurturing environment has been so quickly tossed aside,” she said.

The bill was signed into law in January 2011 and took effect in September. While there was agreement that bullying should be addressed, school officials expressed concerns about both time and costs involved in requiring specially designated staff to investigate every potential incident of bullying. At a workshop of school administrators in October there were discussions about proposing modifications to the law.

Click here to read more.

From the Law Office of MATTHEW STOLOFF, ESQ

NJ Anti-Bullying Law Still Alive

The viability of the New Jersey Anti-Bullying Bill of Rights Act, which I have discussed in  previous posts (here and there), seemed to be in question after the Council on Local Mandates in New Jersey struck it down as an unfunded mandate. Had the New Jersey Legislature not responded in time, the NJ Anti-Bullying Law would have expired on March 27, 2012.

Most people have never heard of the Council of Local Mandates. This is not surprising, since the Council was created in 1995, which is quite recent.  Another reason why most people have never heard of the Council is because the Council’s powers are very limited and can only be exercised in limited circumstances.

In essence, the Council has the “exclusive constitutional authority” to  strike down a law, rule, or regulation that “imposes an unconstitutional ‘unfunded mandate’ on boards of education, counties, or municipalities.”

On January 27, 2012, the Council of Local Mandates struck down parts of the New Jersey Anti-Bullying Law because it is an “unfunded mandate.”

What is an “unfunded mandate”? In simple terms: When a local government entity is required to comply with or implement a statute, rule, or regulation, but there is no money (other than local property taxes) to enable the entity to comply with the law, it is an “unfunded mandate.”

Unfunded mandates are unconstitutional under the New Jersey Constitution,  Art. VIII, § 2, ¶ 5. When the New Jersey Legislature enacts a new law, it must appropriate funds to local government entities so that these entities can comply with the law.

When the New Jersey Legislature enacted the Anti-Bullying Bill of Rights Act, the Legislature created a special fund called the “Bullying Prevention Fund.” The money in this Fund would be used to offer grants to school districts to  comply with the NJ Anti-Bullying Law, such as training personnel and hiring more staff if necessary.

But there was apparently no money in the Fund.

So, on September 2011, the Allamuchy Township Board of Education filed a complaint, alleging that no funds had been appropriated for the Bullying Prevention Fund in order for school districts to comply with the NJ Anti-Bullying Law. Therefore, the NJ Anti-Bullying Law was an unfunded mandate. See In re Complaint filed by the Allamuchy Township Board of Education.

The State of New Jersey answered the complaint, requesting that the complaint be dismissed. Allumuchy Township moved for summary judgment. Then, the State of New Jersey cross-motioned for summary judgment.

Over the next several weeks, numerous papers were filed by several special interest organizations. The New Jersey State Bar Association, the LGBTQ Cacus of Rutgers School of Law, and the New Jersey Department of Education, all filed amicus curiae briefs in support of the Anti-Bullying Law. Not surprisingly, a number of Board of Educations filed papers in support of Allamuchy’s position to overturn the law.

All of these events (and corresponding documents) are well documented on the Council of Local Mandates’ website.

On January 27, 2012, a hearing was held. On that same day, the Council determined that the New Jersey Anti-Bullying Law was an unfunded mandate.

Click here to read more.

President Obama Threatens To Take Schools’ Lunch Money Schools that don’t combat bullying may lose funding

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

Uploaded on Jan 12, 2012
Attorney Keith Sullivan discusses anti-bullying laws on Fox News

Schools that don’t combat bullying may lose funding

By Kriston Capps | Tuesday, Oct 26, 2010

In a move a federal education official described as unprecedented, the Obama administration is announcing today that schools that do not prevent bullying may lose federal funds.

Bloomberg reports that the U.S. Department of Education may strip federal funds from schools that do not enforce gender-discrimination laws. The move signals a shift in the way the government approaches bullying: as a form of harassment, subject to the nation’s civil-rights statutes, rather than an unfortunate aspect of growing up.

The Department of Education will tell schools, from elementary to university level, that they must establish plans to tackle discrimination in the wake of a bullying incident — or face losing federal aid, according to Bloomberg.

Bloomberg’s Jeffrey Young quotes Kristen Amundson, former chairwoman of the Fairfax County, Virginia, school board, who said, “It’s certainly unprecedented as far as I can remember.”

Picking up on the It Gets Better Project launched by columnist and Seattle Stranger editor Dan Savage, celebrities like Ellen DeGeneres and Tim Gunn as well as (less famous but still noteworthy) Google employees recorded messages to encourage queer youth to stick out the bullying they face — bullying that has in recent days led to a rash of suicides among gay, lesbian, bisexual and transgender youth. President Obama recorded one, too.

The new Obama administration posture could be described as the It Will Get Better or Else Project. This strategy is the stick to match the carrot. If schools to continue to ignore intimidation, harassment and violence among students, the schools may themselves face the consequences.

Football Players Protect Special Needs Girl From Bullies

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

Published on Oct 29, 2012
Hats Off to Arizona’s Queen Creek High football team for its anti-bullying effort.
Players including the star quarterback have rallied behind Chy Johnson, a 16-year-old special needs student who was tormented by kids at school, reports 3TV News and azfamily.com.

The players now eat with her at lunch and watch her back.

Johnson’s daily life was far different before. She came home crying every day and the bullies “threw trash at me,” she said in the interview.

Stalking Charges Dropped Against BOTH Girls Accused Of Driving Rebecca Sedwick To Suicide

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

Published on Nov 21, 2013

Florida prosecutors will drop aggravated stalking charges against a second girl accused in a cyber-bullying case that ended with 12-year-old Rebecca Sedwick’s suicide.

Defense attorney Andrea DeMichael said that while she has yet to receive the formal document from the State Attorney’s Office, her understanding was that Guadalupe Shaw, 14, will be cleared of stalking charges shortly.

Shaw and a 13-year-old girl have been accused of driving Sedwick to take her own life by jumping off a concrete factory.

From New York: New Statewide Anti-Bullying Law Goes Into Effect July 1, 2012

Posted by Maria Mangicaro
Bullying Prevention Advocate
mangicaro829@aol.com

Published on Jun 1, 2012
FLORAL PARK — A new statewide anti-bullying law will go into effect on July 1. The Dignity for All Students Act, signed into law by then Governor David Paterson in 2010, seeks to increase awareness and education about bullying in schools. The law mandates that all schools create anti-bullying programs, create codes of conduct to prevent harassment and report all bullying incidents on school property to the state. FiOS1’s Ron Lee reports