Sanchez ex rel. Sanchez v. Unified Sch. Dist. 469

50 Kan.App.2d 1185

339 P.3d 399

Austin SANCHEZ, by and through his next friend and natural guardian, Amy SANCHEZ, and Amy Sanchez, individually, Appellants

v. UNIFIED SCHOOL DISTRICT 469, AppelleeandKerry Brungardt, Michel Jeffries, Cody Schmitendorf, Alan Schmitendorf, Beverly Schmitendorf, and Richard Jeffries, Defendants.

110,584.

Court of Appeals of Kansas.

Nov. 14, 2014.

Review Denied July 22, 2015.

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.

Opinion

STANDRIDGE, J.

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.

Facts

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 officer warned Cody during this meeting that further verbal or physical abuse of Austin might result in criminal charges.

On October 26, 2011, Amy and her boyfriend went to the school to report Cody's bullying to Brungardt. Amy informed Brungardt that Cody had been bullying Austin since the beginning of the school year and most of the bullying occurred in the commons area before school, with some incidents taking place during football practice. Amy then told Brungardt about the two physical incidents that had occurred between the boys.

Brungardt later met with Austin to discuss the situation. Brungardt then called Cody to his office and spoke to the two boys together. Cody admitted that he bullied Austin but denied making fun of Austin's lazy eye. Brungardt admonished Cody that he was to leave Austin alone and told Austin to inform Brungardt or Jenkins if Cody bothered him again. After sending Austin back to class, Brungardt talked to Cody at length about why he was engaging in the bullying behavior, about the school's expectations for Cody's behavior, and about how Cody should treat other students. After admonishing Cody again to leave Austin alone, Brungardt warned Cody not to retaliate against Austin. Brungardt then called Cody's mother in Cody's presence and informed her that Cody was being suspended for bullying Austin. Cody received 2 days of out-of-school suspension and 1 day of in-school suspension as punishment. When Cody returned to school, he met with a school social worker, who spoke with Cody about how to treat other students and told him that he should stay away from Austin.

Brungardt reported that he later checked with Austin five to six times to make sure the bullying had ceased, and Austin assured him there was no problem. Brungardt and Jenkins informed Austin's team teachers of the situation between Austin and Cody so they could help monitor it.

On November 9, 2011, Amy and her boyfriend returned to the school to inform Brungardt that Cody was still making threats to physically harm Austin, but this time the threats against Austin were made to other students instead of directly to Austin. For example, Cody told another student to “ ‘keep Austin away from me or I will kick his ass.’ ” After meeting with Amy, Brungardt and Jenkins spoke to some of the students who were alleged to have heard Cody's threatening statements. Those students confirmed the threatening statements were made. Brungardt next spoke with Austin, who also confirmed Cody's threats to physically harm Austin were now being made to other students instead of directly to him. Brungardt asked Austin why he had not reported Cody's behavior and then reiterated that Austin should let Brungardt, Jenkins, or another adult know if any additional threats or bullying occurred.

Brungardt next met with Austin and Cody together. During this meeting, Cody admitted telling his friend Dylan Hawley to “ ‘get [Austin] away from me’ or he would ‘kick [Austin] across the cafeteria.’ ” Brungardt informed Cody that his behavior violated the school's zero-tolerance bullying policy, which had been explained in detail to Cody just weeks earlier in conjunction with the school's decision to suspend Cody for bullying Austin. When Brungardt advised Cody's parents of the violation, they agreed to obtain counseling for Cody in order to avoid imposition of yet another out-of-school suspension. Cody ultimately received 4 days of in-school suspension. In addition to this suspension, the school imposed the following restrictions upon Cody for the balance of the semester: (1) he was required to report to the school office upon arrival and remain in the office until school started and (2) he was required to report to and remain in the school suspension classroom during his lunch period.

During lunch period the next day, Michel—who was sitting at another table-made fun of Austin's eye. Austin told Michel to “shut up.” Austin did not really know Michel, was not in any classes or school activities with him, and had never spoken to him prior to that day. When Austin and Michel were in the hallway after lunch, Michel said he was going to beat up Austin after school. Austin responded, “ ‘[W]hatever,’ ” because he did not believe that Michel would do it, and he was not scared that Michel would hurt him. Austin did not report either conversation with Michel to any adult at school.

After school that day, Austin was outside near the school bus loading area when one of Michel's friends and the friend's brother pushed him; Austin pushed back. In response, Michel hit Austin, fracturing his jaw. Austin went to the nurse's office. After Brungardt arrived at the nurse's office, he called Amy and the Lansing Police Department to report the incident. Austin was transported to the hospital. While there, he provided a written statement to the police. Austin did not know why Michel would want to hit him and said the incident was unexpected. Neither Amy nor Brungardt were aware of any problems between Austin and Michel prior to the November 10 incident, and there were no reports that Michel had ever previously threatened or hit anyone.

After calling Amy and the police, Brungardt called Michel's father to request that Michel return to the school. Michel admitted to Brungardt that he hit Austin. Michel denied, however, that hitting Austin had anything to do with Cody, who was not present when Michel hit Austin. Brungardt later met with Cody to determine if Cody was involved in any way with Michel hitting Austin. Consistent with Michel's statement, Cody denied having anything to do with the incident. Michel was suspended from school for the remainder of the semester and upon his return to school, he was not allowed in the general student population before school or during lunch. Amy removed Austin from the school following the incident and made arrangements for him to complete the semester by working at home with the help of a teacher. Austin enrolled in a new school at the beginning of the second semester.

On April 12, 2012, Amy filed suit individually and on behalf of Austin, bringing various tort claims against USD 469, Brungardt, Cody and his parents, and Michel and his parents. Plaintiffs ultimately dismissed or settled their claims with Cody, Michel, and their parents. Eventually, the only claim that remained was Plaintiffs' claim of negligent supervision against USD 469 and Brungardt, which alleged that USD 469 and Brungardt breached their duty to provide Austin with a safe learning environment by failing to reasonably and promptly respond to notice of the ongoing bullying by Cody and Michel.

After conducting discovery, USD 469 and Brungardt moved for summary judgment...