July 01, 2015

Private School Could Not Be Negligent for Lack of Abuse Prevention Policy

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Hecksher v. Fairwinds Baptist Church, 2015 WL 2415121 (Del.)

Trial court improperly awarded summary judgment where private school lacked sex abuse prevention policy and failed to report alleged abuse. Knowledge of abuse by wife of alleged perpetrator, also a school employee, could not be blocked from being imputed to school because there was no evidence she was acting solely in her role as a spouse in failing to report. 

This case was brought on a claim that a private school violated the state Child Victim’s Act (the Act). A child alleged the school was grossly negligent in failing to prevent her teacher/foster father’s abuse. She contended that his wife, also a school employee, observed the abuse on school property and failed to report it. She also alleged the school was grossly negligent in not having a sexual abuse prevention policy. 

When she attended Fairwinds, her foster father was a math, Spanish, and bible teacher; her foster mother was a secretary; and her foster aunt was a kindergarten teacher. She had been placed with them by her mother when she was 12 years old and her mother was struggling with substance abuse. She alleged that her teacher/foster father started sexually abusing her when she was 13, offering her extra credit for sex acts in classes she was having difficulty with. The child also alleged that the principal was sexually abusing another student, but discovery was not permitted on that matter. 

Regarding knowledge of the abuse, the child testified during a deposition that the foster mother/employee had confronted her husband once about a letter the child had written imploring him to stop abusing her. She also testified that her foster mother had seen her being raped at home and at the school.

She also testified that other staff had witnessed red flags, including her foster foster/teacher slapping her on the butt in school. Other evidence was submitted that two other students complained about the teacher’s behavior; one that he rubbed her butt and another of an inappropriate innuendo, over which that child changed schools. The pastor and principal admitted they had counseled the teacher after these incidents. Several other students reported inappropriate sexualized comments, which were received via deposition or affidavits. 

The superior court granted summary judgment in favor of the school. It found that the child had failed to prove that anyone other than the perpetrator’s wife knew of the abuse and that she had failed to inform the school because of loyalty to her husband and thus was acting outside the scope of her employment. 

The Delaware Supreme Court disagreed and overturned the order. 

Taking the facts at the summary judgment stage in the most favorable light to the plaintiff, the trial court assumed that the wife knew about the abuse but concluded her knowledge could not be imputed to the school due to her dual role as wife to the perpetrator. 

Whether the wife was motivated by her personal or professional role was an issue was for the jury to decide. There was not clear evidence that the wife was acting solely for personal reasons when she failed to report the abuse. She witnessed abuse at school when she was acting as an employee. Though she denied having knowledge, she did state in response to a hypothetical in the deposition that she would have reported abuse had she known about it, casting doubt about what her motivations might have been.

Further, the school should have been able to foresee hiring of spouses, who might have conflicted loyalties, as being a potential threat to students, without any effort to ensure that related employees put their work above personal duties.

Regarding the lack of a sexual abuse prevention policy, the court noted that schools have a duty to properly care for children in their charge. It was undisputed that they lacked a sexual abuse prevention policy. Further, they failed to train employees about their duties as mandatory reporters or any other training on preventing sexual abuse. While the mandatory reporter statute does not require training expressly, the school would have to take some reasonable steps to ensure staff compliance. A reasonable jury could find this constituted gross negligence, especially since the school’s lack of antinepotism policies created potential conflicts of interest. 

Lastly, a reasonable jury could also find the school was grossly negligent in ignoring the multiple red flags from multiple students.