Tate v. Board of Education

843 A.2d 890

155 Md. App. 536

Tanika TATE v. The BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY.

No. 0036, Sept. Term, 2003.

Court of Special Appeals of Maryland.

March 5, 2004.

Jon D. Pels (Pels, Anderson & Lee, LLC on the brief), Bethesda, for appellant.

Roger C. Thomas (Terry L. Bell, Knight, Manzi, Nussbaum & LaPlaca, P.A. on the brief), Upper Marlboro, for appellee.

Argued before DAVIS, GREENE¹, SHARER, JJ.

SHARER, Judge.

The question presented in this appeal, one of first impression, is whether the voluntariness component of the defense of assumption of the risk in a civil action is negated as a matter of law because the victim's consent is not a defense to the criminal offense of statutory rape.²

Appellant, Tanika Tate, seeks review of a motion for judgment entered against her in the Circuit Court for Prince George's County. Appellant sued the Board of Education of Prince George's County after she was sexually assaulted by a family member with whom she left her high school, before the usual dismissal time, without permission. Appellant has presented for our review three questions, which we have re-cast as one for simplicity:³

Did the circuit court err by granting appellee's motion for judgment on the basis that appellant assumed the risk of her injuries as a matter of law?

Although a victim's age at the time of the sexual assault prevented her attacker from asserting consent as a defense to criminal charges, we hold that the victim was competent to consent for civil litigation purposes, and thus could be determined to have assumed the risk of her injuries. We shall affirm the judgment of the trial court.

FACTS and PROCEDURAL HISTORY

We note that "[b]ecause we are reviewing the trial court's decision to grant the appellees' motion for judgment at the close of the appellant's case, we shall recite the facts as adduced at trial in the light most favorable to the appellant." Nelson v. Carroll, 355 Md. 593, 600, 735 A.2d 1096 (1999) (citing Md. Rule 2-519(b)); Blood v. Hamami P'ship, 143 Md.App. 375, 379, 795 A.2d 135 (2002).

In November 1999, appellant was fifteen years of age and a 10th grade student at Suitland High School, a public high school under the management and direction of appellee, the Prince George's County Board of Education. During the Thanksgiving school holiday, her uncle-in-law, Kevin Shields, made sexual advances toward Tanika, including lifting her shirt and skirt. On the Monday after the holiday, Shields telephoned Tanika before she left home for school and informed her that "he was going to get me from school.... [S]o he could take me to his house and have sex with me."

On that same day, after her lunch period, Tanika was called from her math class to the high school's main office. When she arrived in the office, she was informed by a member of the office staff that Shields "was there to get a key from me." Shields apparently had sought permission to take Tanika from her class, which was denied by Kisha Garner, a secretary working in the main office. Ms. Garner testified that she informed Shields she would not allow Tanika to leave school property with him without parental permission, but that she would call her from class so that she could give him the key.⁴

After Tanika and Shields exchanged keys, Ms. Garner testified, they left the main office and she followed them to the main lobby. She watched Tanika and Shields until Tanika left the lobby and walked in the direction of her classroom, and Shields left the building. Ms. Garner and Tanika both testified that neither Tanika nor Shields informed anyone of their intentions to leave the school building together. It is unclear from the record whether Tanika and Shields left the building by the same exit, or by separate exits. The record does reveal that there was a guard booth located at the main entrance to the school, but that it was not manned at the time.

Tanika testified that after she left the school grounds with Shields, they traveled together to his home in Upper Marlboro. While at his home, Shields directed Tanika to remove her clothes. Upon her refusal, Shields removed them. She testified that Shields then engaged in several sexual acts with her, including intercourse, despite her protests. After the events at Shields' house, he returned Tanika to school just ten minutes before dismissal time.

Three months after the incident, Tanika told family members about what had occurred. As a result, Shields was charged with three sexual offenses stemming from the incident. He was convicted and sentenced to two years in prison.⁵

The Board of Education's Dismissal Policy

It was Tanika's theory at trial that agents and employees of the Board were negligent in permitting her to be taken from school by Shields, contrary to established Board policy. Thus, the emphasis at trial concerned the school's early dismissal policy and the procedures relating to the release of students to family members before the school day ends. Tanika acknowledged that students were expected to remain at school for the entire day, unless they had permission from the school staff or their parents to leave early. She also knew that if a student needed to leave early, a parent or other authorized adult was required to sign the student out. In fact, Tanika's mother had taken her from school early on several occasions before the Monday after Thanksgiving in 1999. Tanika knew that leaving school as she did was without permission, and contrary to regulations.

The Present Case

On December 18, 2001, Tanika's mother, Darlene Gray, filed a two-count complaint on her own, and her minor daughter's, behalf, alleging negligence by the Board of Education. When Tanika reached the age of majority, she filed an amended complaint to bring her claims in her own right. In May 2002, the Board of Education filed a third-party complaint against Shields for indemnification and contribution. Shields did not answer, and a default judgment was entered against him on August 16, 2002.

On March 4 and 5, 2003, a jury trial was held in the Circuit Court for Prince George's County. At the close of appellant's case, the court dismissed Darlene Gray's claim. At the conclusion of all the evidence, the court granted the Board's motion for judgment as to the remaining count. In so doing, the court ruled:

All right. The case that neither side cited to me, but the court found on its own, I find to be particularly controlling here, the case Casper v. Charles F. Smith and Sons Company, which is at 71 Md. [App.] at 445 Court of Special Appeals opinion from 1987. It arose from an incident in which a 7- and an 8-year old girls were severely and permanently injured when they fell into a stream located in Baltimore City and were submerged in icy water. As a result, both children were profoundly brain-damaged and suffered from, among other things, spastic quadriplegic.

And in that case, the court deals with a number of issues, but one is the assumption of the risk. They cite Zachs v. Pleasant for the proposition. I[`]ll quote it, that assumption of the risk implies an intentional exposure to a known danger, and they do go through, to some extent, the distinction between contributory negligence and assumption of the risk; that while may overlap often and may certainly result in the same result, they are not the same.

And assumption of the risk, obviously, is where the risk of danger was known and understood by the plaintiff, and the plaintiff consented, voluntarily chose to encounter the risk. In this case, in Casper, they found where the plaintiff voluntarily enters into a situation involving obvious danger, he or she may be found to have assumed the risk. There is no doubt of tender years can assume the risk of his or her actions. In determining whether or not a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied, and a plaintiff will not be heard to say that he did not comprehend the risk which must have been obvious to me.

* * *

In this case, the facts do permit only one conclusion. The facts as stated by the plaintiff herself were that several days before the incident, she had been the subject of sexual advances, verbal advances, and compliments I guess about how pretty she was and the like, accompanied by some form of sexual assault, exposing her body by lifting up her clothing. That was followed within days on the day of the incident by a phone call from her uncle, where he directed [sic] stated that he was going to come to the school and pick her up and take her to his house, where they would have sex. So, there can be but one conclusion, that the plaintiff knew of the risk that was involved. I don[`]t find the distinction either in the law or in the facts here. The plaintiff is arguing between consensual sex and nonconsensual sex.

The question then, the only question left is whether she voluntarily exposed herself to that risk of harm. And there are some cases that do say there may not be assumption of the risk where there is no alternative available. Usually, they[']re questions of pathways, and people walking, and the like, and they had to be somewhere, and there was only one available pathway.

Certainly in this case, the evidence would suggest that there were a number of alternatives available to the plaintiff. She testified that she had been told by her mother that she could come and should come to her when anybody did anything that made her uncomfortable, particularly in the area of sexual advances. Going to her mother would have been an alternative.

Any number of other alternatives existed at the school. When she came into contact with Mr. Shields in the office, she could have handed over the key which was the purported reason for the visit, and left. She could have said, I[`]m not going to leave the office and simply stayed. She could have asked, excused herself to use the restroom. She could have done any number of things. Or she

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