                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Clarence Glaspell, Mary Glaspell,                                                 FILED
and Jacob Glaspell                                                           November 3, 2014
Plaintiffs Below, Petitioners                                                RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 14-0175 (Taylor County 09-C-55)

Taylor County Board of Education,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioners Clarence Glaspell, Mary Glaspell, and Jacob Glaspell, by counsel LaVerne
Sweeney, appeal the Circuit Court of Taylor County’s December 16, 2013, order granting
summary judgment to respondent. Respondent Taylor County Board of Education, by counsel
Keith C. Gamble and Kenneth L. Hopper, respond in support of the circuit court’s order.
Petitioners also filed a reply.

        This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                            I. Factual and Procedural Background

        On June 2, 2008, Jacob Glaspell (then a minor) was choked by Jesse Murphy while both
were enrolled as students at Grafton High School (“GHS”).1 The incident occurred in the school
on a ramp adjacent to the choral department, and several administrators were involved in
responding to and investigating the incident, including David Knotts, the principal at GHS
during the 2007-2008 school year; Lori Shumaker, an assistant principal; and Mary Tucker, an
assistant principal. The school determined that Jacob Glaspell, Jesse Murphy, and other students
were engaged in horseplay. After the incident, several students informed Mrs. Tucker that they
were playing the “choking game”.2 According to school administrators, prior to this incident,

       1
          While respondent does not appear to dispute that Petitioner Jacob Glaspell was injured
as a result of being choked, neither petitioners nor respondent set forth the type or extent of his
injuries.
        2
          It is this Court’s understanding that the choking game involves restricting blood flow to
the brain by squeezing or applying pressure to the neck and that once the pressure is released, the
individual experiences a high.
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they had no knowledge of the choking game. While some school administrators reviewed video
of the incident, attempts to save the video failed when trying to load it onto disks and the video is
no longer available to view.3

        Petitioners Mary and Clarence Glaspell filed the original civil action in the Magistrate
Court of Taylor County on March 20, 2009. On August 14, 2009, the action was removed to the
Circuit Court of Taylor County, where it was largely inactive until February 15, 2011, when an
order was entered permitting petitioners to amend their pleadings to add Jacob Glaspell as a
plaintiff and the Taylor County Board of Education (“the Board”) as a defendant. On April 7,
2012, petitioners filed an amended complaint adding those parties. The amended complaint
contained only one claim of negligence against the Board. Petitioners filed a second motion to
amend their complaint wherein they requested to add Jesse Murphy as a defendant, and that
motion was granted. The second amended complaint contained the same allegation of negligence
against the Board as the first amended complaint. Petitioners then sought permission to file a
third amended complaint to add additional claims of negligence against the Board. That motion
was granted, but the third amended complaint was never served on the Board or its counsel.

        Following the close of discovery, the Board filed a motion for summary judgment. On
November 7, 2013, the circuit court heard oral argument on the motion. Shortly thereafter, the
circuit court executed an order indicating that it was prepared to grant summary judgment in
favor of the Board. The court directed counsel for the parties to submit proposed findings of fact
and conclusions of law, and the parties complied. The circuit court then executed the Board’s
“Order Granting Defendant, Taylor County Board of Education’s motion for Summary
Judgment” on December 16, 2013. Petitioners appeal from that order.

                                       II. Standard of Review

       Petitioners appeal the circuit court’s grant of summary judgment to respondent. Our
standard of review for such order is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451
S.E.2d 755 (1994) (“A circuit court's entry of summary judgment is reviewed de novo.”); Syl. Pt.
2, Wickland v. Am. Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

                                           III. Discussion

        On appeal to this Court, petitioners assert six assignments of error. First, petitioners argue
that respondent was negligent as to the supervisory coverage ratio in the school cafeteria
immediately prior to the subject injury. Petitioners contend that respondent had a duty to protect
and serve the students and that part of the duty was to protect them from being harmed or
distracted by students who lose interest in learning and focus on being disruptive. In addition,
petitioners argue that respondent was required to safeguard the health and well-being of the
children to protect them while participating in the lunch program from the time they leave the
classroom for lunch until they return to the classroom at the conclusion of lunch. Petitioners
argue that West Virginia Code § 18-5-18a, “Maximum teacher-pupil ratio,” is applicable in the



       3
           Petitioners admit that they were able to view the video of the incident on June 2, 2008.
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cafeteria setting at the high school. However, that statute relates solely to the teacher-pupil ratio
in the classroom for students in kindergarten through sixth grade. Petitioners fail to cite to any
statutes or cases that set forth a teacher-pupil ratio for the cafeteria or other non-classroom
settings. There were two to three teachers in the cafeteria during the lunch period. Further, the
student who caused Petitioner Jacob Glaspell’s injuries did so outside of the cafeteria. Therefore,
we find that the circuit court did not err in granting summary judgment on this ground.

        Petitioners’ second, third, fourth, and fifth assignments of error all relate to supervision of
the students. In petitioners’ second assignment of error, they allege that respondent was negligent
because its supervisory personnel failed to see up to ten students engaged in a choking game.
This alleged error relates to petitioners’ fourth assignment of error that respondent was negligent
because the choking games had been taking place for decades amongst youth and there had been
nationally reported incidents of such games. Petitioners contend that respondent and
respondents’ employees should have known of the students’ propensity to engage in choking
game activities. They also assert that it was foreseeable that the students would continue
participating in this game after leaving the cafeteria. Therefore, petitioners allege that
respondent’s employees breached their supervisory duties. In response to respondent’s motion
for summary judgment below, petitioners submitted an affidavit that included data concerning
the choking game. Petitioners now cite to “publications” which include articles from Wikipedia
and the Centers for Disease Control, arguing that the articles were easily available through a
number of news sources prior to the subject incident.

        Respondent admits that its employees did not notice the students involved in a choking
game in the cafeteria. However, there is no dispute that Jesse Murphy did not have a history of
violence, and there were no known issues between Mr. Murphy and Petitioner Jacob Glaspell.
Respondent also asserts that neither it nor its employees were aware of the existence of the
choking game at the time of this incident. “Black’s Law Dictionary defines ‘actual knowledge’
as ‘direct and clear knowledge, as distinguished from constructive knowledge,’ Black’s Law
Dictionary at 888 (8th Ed.2004), and defines ‘actual notice’ as ‘[n]otice given directly to, or
received personally by, a party.’ Id. at 1090.” Mace v. Ford Motor Co., 221 W.Va. 198, 204, 653
S.E.2d 660, 666 (2007). Petitioners fail to cite to any evidence proving that respondent or its
employees had actual knowledge or notice of the existence of this game in order to be on watch
for the same. It is not feasible for school employees to be able to see what every student is doing
in the cafeteria and hallways at every moment throughout a school day, particularly at the high
school level. For these reasons, we find that the circuit court did not err in granting summary
judgment to respondent on these grounds.

        Petitioners’ third assignment of error is that respondent was negligent because it was not
monitoring the video feeds from the cafeteria during a lunch period while students were present.
Petitioners argue that because the school had sixteen working video cameras positioned
throughout the school at the time of the incident, an employee should have been positioned in the
office constantly watching the video feed. In essence, petitioners contend that if a school
employee had been monitoring the feed, the students’ activities leading up to and at the time of
the incident would have been observed and stopped. In their related fifth assignment of error,
petitioners contend that respondent was negligent because the hallways were inadequately
supervised when students were present. They argue that when masses of students are to be in the

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hallways, an ounce of prevention beats a pound of cure, again asserting that respondent was
negligent in failing to have the supervision in place to prevent this incident.

        As set forth above, it is virtually impossible for school employees to be able to see what
every student is doing at every moment throughout the school. As a practical matter, it is
doubtful that a school employee would be able to simultaneously watch the video feeds from all
sixteen cameras and prevent wrongdoing by students. Again, petitioners base their arguments on
speculation that constant monitoring of the video feeds would have prevented this incident.
Similarly, they assert that having a sufficient number of teachers in the hallways might have
prevented this incident. Petitioners fail to present any evidence that the hallways were
inadequately supervised, and they cite no law in support of this assignment of error. As set forth
by the circuit court, without a breach of duty giving rise to the claim of negligence, respondent is
entitled to immunity under the Governmental Tort Claims and Reform Act. W.Va. Code §§ 29­
12A-1 to -18 (2013). Therefore, we find no error in the circuit court’s grant of summary
judgment to respondent on this issue.

        Petitioner’s sixth and final assignment of error is that petitioners offered adequate
evidence in response to a motion for summary judgment to establish that a genuine issue of fact
existed as to whether respondent was negligent. In support of this argument, petitioners assert
that they offered evidence to support each of their contentions of error set forth herein.
Petitioners argue that any lack of evidence is due to the spoliation of evidence by the Board’s
employees.4 Petitioners do not allege that respondent or its employees intentionally deleted the
video footage, and it is undisputed that petitioners viewed the same. There do not appear to be
factual disputes regarding the number of Board employees in any location in the school, and
respondent admits that there were no employees constantly monitoring the video feed. Thus, it is
unclear what the video would show that was not already in evidence for consideration by the
circuit court. Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary
judgment is proper where the record demonstrates “that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” In this case,
“the pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” W.Va.R.Civ.P. 56(c). Therefore, we find that
the circuit court did not err in finding that petitioners did not offer adequate evidence in response
to respondent’s motion for summary judgment.

     For the foregoing reasons, we conclude that the circuit court did not err in granting
summary judgment in favor of respondent. Accordingly, we affirm.

                                                                                          Affirmed.



       4
          While petitioners do not assert a specific assignment of error related to spoliation of
evidence, they argue the same as part of their contention that respondent was not entitled to
summary judgment. After some school employees and petitioners viewed video footage from the
date of the incident, school personnel were attempting to copy the footage. However, they were
unsuccessful and the footage was reportedly accidentally deleted.
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ISSUED: November 3, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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