September 01, 2011

Kentucky Teacher Immune from Negligent Supervision Claim for Alleged Sexual Abuse of Child

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.

Turner v. Nelson, 2011 WL 2434041 (Ky.)

Kindergarten teacher was entitled to qualified official immunity from mother’s lawsuit claiming she failed to supervise children and report alleged sexual abuse to law enforcement since her actions in case were discretionary. Mandatory reporting statute applies when a parent, guardian, or person in custodial authority abuses or neglects a child, not when a child is the perpetrator, and teachers are only required to report if requested.

A five-year-old kindergarten student told her mother a classmate touched her inappropriately at school. The mother reported the incident to the child’s teacher, who interpreted it as a childish prank, but nevertheless separated the two in class, talked to the accused student about inappropriate touching, and told a teaching assistant of the plan to separate the students.

When the student told the teacher about another incident a few days later, the teacher took the student to meet with the school principal or a counselor, but neither was available.

That evening, the child told her mother’s sister the classmate had touched her again. The mother then contacted the principal, who held a conference with the two students the next day. The girls revealed a game they played involving pulling up each other’s underpants, and that on one occasion the accused classmate accidentally hit the student between the legs, but that there was no intentional touching. The principal told the mother that she was investigating the incident.

The student reported further touching by the classmate to her mother, which led the mother to report the new claims to the school principal and law enforcement, and to seek a medical exam of her daughter.

Soon thereafter, the mother brought suit against the teacher, alleging she failed to supervise the children in her class and report the alleged sexual assault to law enforcement, as required by statute.

The trial court entered summary judgment in favor of the teacher, finding she was entitled to qualified official immunity since her actions were discretionary.

The appellate court reversed and remanded to the trial court with instructions to reconsider the mandatory reporting obligation under Kansas statute, or to further explain how the teacher’s actions were discretionary.

The trial court detailed the reasons for finding the teacher’s actions were discretionary and again found the teacher was entitled to qualified official immunity.

The appellate court again reversed, holding that the teacher was not entitled to qualified official immunity since the reporting requirement under Kansas’ statute is mandatory and therefore ministerial. The teacher moved for discretionary review.

The Supreme Court of Kansas reversed. The teacher argued the mandatory statutory reporting requirement did not apply in this case. She first claimed the reporting statute addresses abuse by people in custodial or supervisory positions; therefore, she did not violate the reporting requirement since the alleged abuse was committed by a child. She also claimed the reporting statute requires knowledge of abuse or reasonable cause to believe abuse occurred before the reporting requirements apply, but neither existed here.

Regarding the first claim, the court explained that Kansas’ mandatory reporting statute applies to dependent, neglected or abused children. The definition of an abused child is limited to cases involving abuse by a parent, guardian, or person exercising custodial control. It therefore does not apply when a child is alleged to have committed the abuse unless a parent, guardian, or other person in custodial control creates or allows such abuse.

In this case, the teacher knew of the inappropriate touching and responded by separating the two students and advising her assistant of the plan to keep them apart. Therefore, she did not allow the touching or create or allow the risk of abuse. While a report could have been made in this case, it was not mandated by the reporting statute.

Regarding the mother’s second claim, the court explained the reporting statute includes teachers among those professionals who believe or has reason to believe a child is dependent, neglected or abused, may, if requested, make a report to local law enforcement. This reporting requirement applies regardless of whether the abuse was committed by a parent, guardian, or person in custodial control. The mother argued that its broad reach was meant to provide the most comprehensive protection to children and that it required the teacher to report the alleged abuse to law enforcement. However, the court emphasized that this reporting requirement applies only “if requested” and no one asked the teacher in this case to report to law enforcement.

In deciding if the teacher was entitled to qualified official immunity, the court considered if her actions were discretionary. “Qualified official immunity applies only where the act performed by the official or employee is one that is discretionary in nature.” In this case, the teacher separated the students upon learning of the inappropriate behavior. She also met with them to explain that the touching was inappropriate, and informed her assistant of the plan to separate them. She had also attempted to find the principal or a counselor after the second incident.

The court found these actions by the teacher were discretionary and stressed that teachers must “maintain the discretion to teach, supervise, and appropriately discipline children in the classroom.” Therefore she was entitled to qualified immunity.