SUPERIOR COURT

OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5264
November 14, 2019
Reann Warner, Esquire Kevin J. Connors, Esquire
Jacobs & Crumplar, P.A. Marshall Dennehey Warner Coleman
750 Shipyard Drive, Ste 200 & Goggin
Wilmington, DE 19801 Nemours Building
1007 N. Orange Street, Ste. 600
P.O. Box 8888

Wilmington, DE 19899

James H. McMackin, IJ, Esquires:
Morris James LLP = 2m
500 Delaware Avenue, Ste=1500%
P.O. Box 2306 — XO
Wilmington, DE 19899 o 3
SB oe

RE: Theresa Collins and Kelly Collins vs. Derek Dutton, The Board of
Education of Cape Henlopen School District, Superintendent Robert
Fulton, Principal Nikki Miller and Brian Donohue
C.A. No.: $19C-01-045 ESB
Dear Counsel:
This is my decision on the respective Motions to Dismiss filed by Defendant

Derek Dutton (“Dutton”), and Defendants Superintendent Robert Fulton

(“Fulton”), Principal Nikki Miller (“Miller”), Brian Donahue (“Donahue”), and the
Board of Education of Cape Henlopen School District (individually, the “Board,”
and collectively with Fulton, Miller, and Donahue, the “School Defendants”).

This litigation involves an alleged sexual assault on the Plaintiff Theresa
Collins (“Theresa”) by Dutton at Cape Henlopen High School in 2015. Plaintiff
Kelly Collins (“Kelly”) is Theresa’s younger sister. The Plaintiffs’ Second
Amended Complaint contains numerous intentional tort and negligence claims
against the Defendants in connection with the sexual assault.

The School Defendants have moved to dismiss all of the claims asserted
against them in the Second Amended Complaint. Dutton’s Motion seeks dismissal
of all claims against him except for Theresa’s assault and battery claims. After
consideration of the relevant law and the arguments offered by the parties, I find
that the School Defendants’ Motion to Dismiss should be GRANTED.
Specifically, I find that: 1) Theresa’s Title IX claim is untimely; 2) the School
Defendants cannot be held vicariously liable for the intentional torts of Dutton in
this case; and that 3) the School Defendants could not have reasonably foreseen
Dutton’s sexual assault of Theresa. With regard to Dutton, I have determined that
his Motion to Dismiss should be GRANTED IN PART and DENIED IN PART.
The negligence claims asserted against Dutton should be dismissed because the

Second Amended Complaint, as written, only contains allegations of negligence on

2
behalf of the School Defendants. However, I find that Theresa’s claims for
intentional and negligent infliction of emotional distress warrant additional
discovery making dismissal inappropriate at this stage.

I. BACKGROUND!

The incident between Dutton and Theresa occurred at Cape Henlopen High
School in 2015. The Board of Education of the Cape Henlopen School District is a
reorganized school board operating under 14 Del. C. § 1043 and the governing
body of the Cape Henlopen School District. At the times relevant to the current
case, Theresa and Kelly were students attending Cape Henlopen High School in
Sussex County, Delaware.

Up until at least October 2015, Dutton was a staff member and employee of
the Cape Henlopen School District working primarily in the school theater.’
Several instances of Dutton’s interactions with students and colleagues had been
brought to the attention of the Board and other school officials prior to the incident
with Theresa. The first report occurred in December 2011, when a student alerted

the Board that Dutton had called him a “pathetic asshole.”

 

' The following facts are drawn from the Plaintiffs’ Second Amended Complaint.
See D.I. 18.

* Dutton’s exact position and duties are unclear at this stage. According to the
Plaintiffs, Dutton was not a licensed educator.

3
In October 2014, a female intern for Ms. Martha Pfeiffer (“Pfeiffer”), the
school’s theater director, reported that Dutton, in response to witnessing the
intern’s wet blouse, had said “Well, you know we all like you better when you’re
wet” and winked at her. At Pfeiffer’s direction, the intern reported this incident to
then Principal of Cape Henlopen High School Donahue. Also in October 2014,
Fulton and the Board were made aware that Dutton had used a racial slur when
speaking to a Jewish student.’ Then, in November 2014, Pfeiffer informed Fulton
and the Board of the female intern’s complaint and that Dutton had called a red-
headed student “fiery.”

On April 20, 2015, Theresa, then a 17 year old junior at Cape Henlopen
High School, reported to a vice principal that Dutton had thrown a power drill that
had come “within an inch” of hitting another student in the head. A few days later,
on April 22, 2015, Theresa encountered Dutton in the theater as she was coming to
rehearse for an upcoming school musical. According to Theresa, Dutton reached
down the back of her jeans and touched her underwear and buttocks. After this

incident, Theresa felt unsafe and went to her car to cry.

 

3 Around that time, Pfeiffer also told Fulton that Dutton scared her and had anger
issues.
On May 12, 2015, Theresa filed an incident report to the school with regard
to her interaction with Dutton on April 22, 2015. On that same day, a female high
school senior filed a separate incident report alleging that Dutton had asked her
“How good do you fuck?” on March 9, 2015, while she was preparing a
monologue for a Shakespeare competition. Both Theresa and the female senior
met with then Vice Principal Miller on May 13, 2015, where they were assured
that the police would be notified and the matter taken care of. Subsequently,
Theresa’s parents, Virginia and Stephen Collins, also contacted then Principal
Donahue and then Superintendent Fulton regarding the incident with their
daughter. They were told that Theresa’s allegations were being investigated and
that Dutton would not be allowed on campus while students were present.

However, on October 14, 2015, Theresa, then a senior, encountered Dutton
in the school parking lot. Seeing Dutton upset her greatly, and she told her parents
about this incident. Thereafter, Virginia Collins contacted Fulton. She was told
that he would talk to the school administration and find out why Dutton was still
allowed on school property. A couple of months later, on December 17, 2015,
Theresa’s parents attended a parent-teacher conference where they again saw
Dutton working in the school theater.

Theresa’s parents wrote a letter to the Board on January 26, 2017, notifying

5
them that Dutton was still allowed to work on school property while students were
present despite the previous reports of his inappropriate behavior. On December
12, 2017, Kelly, then a junior, encountered Dutton working in the school theater.
Kelly informed her teacher that Dutton’s presence made her uncomfortable. On
March 7, 2018, Kelly again witnessed Dutton working in the theater. Soon
thereafter, Virginia and Stephen Collins met with Kelly’s guidance counselor, the
theater director, and then Principal Miller to inform them that Kelly was
withdrawing from the theater program because she felt unsafe due to Dutton’s
presence on school property.

The Plaintiffs have alleged numerous failures on behalf of the School
Defendants in responding to the allegations of Dutton’s misconduct. For example,
they point out that, in April 2018, the Board’s schoo] resource officer was unable
to locate the May 12, 2015, reports of Dutton’s sexual abuse and harassment.
Additionally, the School Defendants did not report the allegation of sexual abuse to
either the Division of Child Protective Services or the Delaware State Police.

This action was originally filed by the Plaintiffs on January 23, 2019. The
Plaintiffs’ Second Amended Complaint (the “Complaint”) was filed on May 23,
2019. The School Defendants moved to dismiss the Complaint on June 3, 2019.
Dutton filed his Motion to Dismiss on August 2, 2019.

6
Il. STANDARD OF REVIEW

On a motion to dismiss for failure to state a claim under Superior Court Civil
Rule 12(b)(6), “all well-pleaded allegations must be accepted as true.”* The
motion must be denied if the plaintiff could “recover under any reasonably
conceivable set of circumstances susceptible of proof under the complaint.”® The
Court must read the complaint generously and view all well-pleaded allegations in
a light most favorable to the plaintiff.° Dismissal is warranted only when “under
no reasonable interpretation of the facts alleged could the complaint state a claim
for which relief might be granted.”
II. DISCUSSION

The Complaint contains ten counts against the Defendants for various
wrongs suffered by Theresa and Kelly stemming from Dutton’s alleged sexual
assault of Theresa at Cape Henlopen High School. In response to the Defendants’
Motions to Dismiss, the Plaintiffs have dropped several of the claims contained in

the Complaint. I will begin my analysis with the claims against the School

Defendants and follow with consideration of the claims against Dutton.

 

4 Spence v. Funk, 396 A.2d 967 (Del. 1978).

> Id.

6 Bryce Thompson Inst. v. Medimmune, Inc., 2009 WL 1482237, at *4 (Del. Super.
May 19, 2009).

1 Hedenberg v. Raber, 2004 WL 2191164, at *1 (Del. Super. Aug. 20, 2004).

q
A. Claims Against the School Defendants

The Complaint asserts claims against the School Defendants in some
capacity in ten separate counts. In the Plaintiffs’ Response to the School
Defendants’ Motion to Dismiss, the Plaintiffs agreed to dismiss Counts VII
through X.° The remaining claims against the School Defendants in this dispute
are as follows: Violation of Title IX of the Educational Amendments Act of 1972
against the Board (Count I); assault and battery against the Board (Count II); gross
negligence against the School Defendants (Count III); gross negligence on theory
of premises liability against the Board (Count IV); intentional infliction of
emotional distress (“IIED”) against the Board (Count V); and negligent infliction
of emotional distress (“NIED”) against the Board (Count VI). The claims
contained in Counts I and IV against the Board are asserted by both Theresa and
Kelly. All other claims are being advanced by Theresa alone. The School
Defendants have moved to dismiss all claims against them.

i. Theresa and Kelly’s Title IX Claim Against the Board

In their Motion to Dismiss, the School Defendants assert that any Title IX

claim based upon events that occurred in 2015 is untimely. Specifically, they

argue that the relevant statute of limitations period for a Title IX claim is two years

 

SDI. 2016.
in Delaware and that the last interaction between Dutton and Theresa occurred in
April 2015. In response, the Plaintiffs claim that the applicable statute of
limitations for their Title IX claim is the Delaware Child Victims Act, which
establishes that civil actions based on the sexual abuse of a child have no statute of
limitations. They also argue their Title IX claims accrued when they had reason to
know that the School Defendants’ deliberate indifference and mishandling of
Dutton attributed to the sexual assault, not when the sexual assault actually
occurred. Finally, the Plaintiffs point out that Kelly’s Title IX claim falls within
the limitations period asserted by the School Defendants. The School Defendants
reply by asserting that a Title IX claim accrues at the time of the alleged abuse.
When faced with a Title IX claim, I must apply the most analogous state
statute of limitations.’ This is generally the state personal injuries limitations
period, which is two years in Delaware.’ However, the Plaintiffs argue that, in
this instance, the most analogous statute of limitations comes from the Delaware
Child Victims Act (the “CVA”). The CVA provides, in pertinent part, as follows:
(a) A cause of action based upon the sexual abuse of a minor by an
adult may be filed in the Superior Court of this State at any time
following the commission of the act or acts that constituted the
sexual abuse. A civil cause of action for sexual abuse of a minor

shall be based upon sexual acts that would constitute a criminal
offense under the Delaware Code."!

 

° See Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78 (3d. Cir. 1989).
10 See 10 Del. C. § 8119.
1110 Del. C. § 8145. 9
The Plaintiffs fail to provide any case law in support of their novel theory that a
Title IX claim involving the sexual abuse of a minor has no statute of limitations in
Delaware. This is not altogether surprising as the CVA became effective relatively
recently in Delaware on June 30, 2009, and only two other states, Minnesota and
New York, have since enacted similar statutes. I have likewise been unable to
locate a judicial opinion in any of the relevant jurisdictions addressing the
particular issue raised in this case. For my analysis, I must acknowledge the
potential ramifications of eliminating the statute of limitations for Title IX claims
in Delaware involving the sexual abuse of a minor. This would have a significant
impact on both the Courts and countless educational institutions and programs in
this state. Such a decision cannot be made lightly; it necessitates a careful
consideration of the language and purpose of both Title IX and the CVA.

Title LX provides, in pertinent part, that “[nJo person . . . shall, on the basis
of sex, be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity receiving Federal
financial assistance.”'? Title LX encompasses sexual harassment of a student by a

teacher and is enforceable through an implied private right of action for damages

 

12.90 U.S.C. § 1681(a).

10
against a school district.!> The United States Supreme Court has held that, in order
for a school district to be liable under Title 1X for the sexual harassment of a
student by one of its teachers, it must be shown that “an official of the school
district who at a minimum ha[d] authority to institute corrective measures on the
district’s behalf ha[d] actual notice of, and [was] deliberately indifferent to, the
teacher’s misconduct.”!* “Actual notice” must amount to “actual knowledge of
discrimination in the recipient’s programs.”!> Further, “the response must amount
to deliberate indifference to discrimination . .. The premise, in other words, is an
official decision by the recipient not to remedy the violation.”’°

The foregoing makes clear that a Title [X claim does not necessarily arise
from an incident of sexual harassment/abuse alone. Rather, such a claim is based
on a school district official’s actions or inactions in response to receiving actual
notice of a danger posed by a school employee. The failure to adequately protect

against, or respond to, an employee’s misconduct is the wrong that a Title IX claim

seeks to remedy. Thus, in the current matter, while Dutton’s alleged touching of

 

3 Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75-76 (1992).
'4 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998).
Td. at 290.

16 Td.

11
Theresa may have provided the impetus for the Plaintiffs’ suit against the
Defendants in general, the act itself, independent of circumstance, is insufficient as
a basis for a Title IX claim. The Plaintiffs’ inclusion of allegations in the
Complaint that the School Defendants had knowledge that Dutton posed a danger
to female students before the incident, and that Dutton continued to be seen on
school grounds after the incident was reported, shows that the Plaintiffs are aware
of the need to establish such facts in order to prove a violation of Title IX occurred.

Theresa’s Title [X claim is necessarily based on the School Defendants’
alleged failure to appropriately supervise, investigate, or manage Dutton’s potential
interactions with Theresa after her allegation of sexual assault. Said claim is not,
and indeed cannot be based primarily upon the alleged sexual abuse of Theresa by
Dutton. I therefore reject the Plaintiffs’ contention that the CVA represents the
appropriate statute of limitations for Theresa’s claim. In order for her Title IX
claim to be timely, it must have been brought within two years of its date of
accrual.

Having determined the appropriate statute of limitations for Theresa’s Title
IX claim, I now turn to the issue of when that claim accrued. A Title [IX claim

accrues when a student knows or has reason to know of the injury upon which the

12
claim is based.!” As previously discussed, Theresa’s Title [X claim is based on the
School Defendants’ failure to appropriately handle the allegation that Dutton
sexually assaulted Theresa. This failure should have been apparent to Theresa
when she encountered Dutton in the school parking lot on October 14, 2015,
several months after reporting the sexual assault to school officials and receiving
assurances that Dutton would not be allowed on campus while students were
present. If that was not enough, Theresa’s parents later encountering Dutton
working in the school theater while students were present on December 17, 2015,
should have certainly put the Plaintiffs on notice of the School Defendants’
deliberate indifference to Theresa’s allegation. Accordingly, Theresa’s Title [x
claim accrued on October 14, 2015, or, at the very latest, on December 17, 2015. I
need not decide which date is more appropriate as the Plaintiffs’ initial complaint
was filed on January 23, 2019, making any Title IX claim arising before January
23, 2017, untimely. Thus, I find that Theresa’s Title IX claim is time barred and
should be dismissed.

The School Defendants have also moved to dismiss Kelly’s Title [X claim.
For their part, the Plaintiffs argue that Kelly’s claim is timely under a two year

statute of limitations because her claim accrued on December 12, 2017, when she

 

7 See Moore v. Temple Univ., 674 Fed. Appx. 239, 241 (3d. Cir. 2017).

13
witnessed Dutton working in the school theater. I find that any timeliness
argument is irrelevant as the Plaintiffs have failed to allege sufficient facts to
support a Title LX claim against the School Defendants on behalf of Kelly. It is
unfortunate that Kelly felt the need to withdraw from the theater program due to
understandable discomfort from being around the person accused of sexually
assaulting her sister. However, the Complaint contains no allegations that Dutton
sexually harassed Kelly or even interacted with her at all. Ultimately, if the facts
alleged in the Complaint are sufficient to support Kelly’s claim then any student
simply aware of a rumor or allegation of sexual assault against an employee of the
school they attend could conceivably bring a valid claim under Title IX. Such a
result clearly exceeds the intended scope of Title IX. Therefore, I also find that the
School Defendants are entitled to dismissal of Kelly’s Title [X claim.
ii. Theresa’s Assault and Battery Claims Against the Board

The School Defendants have moved to dismiss the assault and battery claims
against the Board in Count II. They argue that such claims are subject to a two-
year statute of limitations and that the Board cannot be found liable for the assault
and battery of an employee under a theory of respondeat superior. The Plaintiffs
counter by pointing out that Theresa’s assault and battery claims are based on the
sexual abuse of a child and therefore have no statute of limitations under Delaware

14
law. Further, they posit that the Board is responsible for torts committed by
Dutton pursuant to respondeat superior or vicarious liability through Restatement
(Second) of Agency § 219.

As a preliminary matter, I find that Theresa’s assault and battery claims, if
legally sustainable against the board through either respondeat superior/vicarious
liability, are subject to an unlimited statute of limitations pursuant to the CVA.

The alleged illegal touching was sexual in nature and occurred when Theresa was
17 years old.

Under Delaware law, an employer can be found liable for torts committed by
employees while acting within the “scope of their employment.”'® In determining
whether an employee acted within the scope of his or her employment, Delaware
courts utilize a four-factor test pursuant to Restatement (Second) of Agency §
228.!° The four factors for consideration of the conduct of the employee are
whether:

(1) It is of the kind he is employed to perform;

(2)it occurs within the authorized time and space limits;

(3) it is activated, in part at least, by a purpose to serve the master; and
(4) if force is used, the use of force is not unexpectable.”

 

18 Verrastro v. Bayhospitalists, LLC, 208 A. 3d 720 (Del. 2019).
19 See Sherman v. State, 133 A. 3d 971, 978 (Del. 2016).
20 Td.

15
In a recent decision, the Delaware Supreme Court embraced, for the first time, §
228’s companion provision, § 219, as an alternative avenue for which an employer
may be found liable for the illegal acts of an employee in situations where said
employee was acting “solely for their own purposes and hence not in the scope of
employment.””! In that case, the Court found that the State could be held liable for
a sexual assault by a police officer under both § 219 (2)(c)” and § 219 (2)(d).”
Although the Delaware Supreme Court held that the § 219 exceptions
applied in the context of a police officer and arrestee, this Court has declined to
apply said exceptions to teacher-student relationships.“ In Bates, the Court
explained that the § 219 exceptions were inapplicable because the coercive
authority, and the duty to protect an individual derived from said authority, of
teachers and school districts over students was not comparable to the authority of

police officers and the State over arrestees.”

 

21 Sherman v. State Dep’t of Pub. Safety, 190 A. 3d 148, 177 (Del. 2018) (quoting
Restatement (Second) of Agency § 219 cmt. e (1958)).

22 Section 219 (2)(c) “provides an exception to the scope of employment
requirement in cases where the employee’s conduct violated a non-delegable duty
of the master.” Jd. at 182.

23 Section 219 (2)(d) provides an exception to the scope of employment
requirement in cases where the employee “was aided in accomplishing the tort by
the existence of the agency relation.” Jd. at 179.

*4 See Bates v. Caesar Rodney, Del. Super., C.A. N16-12-235 FWW, at 13,
Wharton, J. (Nov. 30, 2018).

5 Id. at 13-16.

16
In the current case, the Plaintiffs do not attempt to argue that the Board can
be found liable for Dutton’s alleged assault and battery of Theresa under the four-
pronged § 228 test. This is understandable as it cannot reasonably be argued that,
based on the facts alleged in the Complaint, Dutton’s misconduct was motivated in
any capacity “by a purpose to serve the [school].””° Instead, they rely on the recent
opinion issued by the Court in Smith v. Liberty Mutual Insurance Company” for
the proposition that respondeat superior liability extends to the Board through the
§ 219 exceptions previously discussed. In Smith, the Court found that a school’s
insurance carrier was obligated to defend a teacher facing claims similar to those in
the instant case because the conduct at issue satisfied the requirements for both the
§ 228 test and the § 219 exceptions.”

I decline to follow the Court’s holding in Smith as applied to the facts in this
case. First, I note a flaw in Smith’s analysis of respondeat superior liability.
Contrary to the Court’s finding in Smith, it is impossible for an employer to be
liable for an employee’s illegal conduct under both the § 228 test and the § 219

exceptions. As explained supra, the § 228 test is used to determine whether an

 

26 Sherman v. State Dep’t of Pub. Safety, 190 A. 3d 148, 173 (Del. 2018) (quoting
§ 228(1)(c)).

27901 A. 3d 555 (Del. Super. 2019)

8 Td. at 565.

iW
employee’s misconduct occurred within the scope of their employment. On the
other hand, the § 219 exceptions support employer liability even if an employee
acts “solely for their own purposes and hence not in the scope of employment.””
Clearly, the same conduct cannot, at the same time, be both “within the scope of
employment” and “not in the scope of employment.” If a court finds that an
employee’s conduct satisfies the § 228 test, as was the case in Smith, then any
further consideration of § 219 is moot.

Second, I think Smith too readily found that the § 219 exceptions generally
apply to the interactions between students and teachers. Smith’s dicta essentially
operates to subject schools to strict liability for all torts committed by their
employees against their students. The staggering public policy implications of
such a change in the law dictate that such a decision is best left to the Delaware
General Assembly.

Third, I find that Smith misapplied the Delaware Supreme Court’s holdings
in Sherman v. State Department of Public Safety. The Smith Court did not address
the Bates Court’s holding that the § 219 exceptions generally did not apply in the

student-teacher context. As explained in Bates, the Sherman Court determined that

the officer’s misconduct in that case fell within the § 219 exceptions due to the

 

9 Restatement (Second) of Agency § 219 cmt. e (1958).

18
strong coercive power and authority that police officers have over arrestees.°”? To
justify the application of the § 219 exceptions to student-teacher interactions, Smith
noted that students may be “subject to detention, suspension, and police
intervention” if they leave school property without proper authorization or
otherwise “defy the school’s authority.”*! Therefore, the Smith Court reasoned,
“schools would owe a similar duty to students in their custody as the State owes to
an arrestee in its custody.”** This rationale fails as it equates school students with
private citizens in police custody. Although some will undoubtedly disagree, a
school is not a prison cell, nor is it the back of a police car. An arrestee attempting
to flee their arrest or confinement will likely have to confront officers armed with
deadly weapons and will face a significantly increased period of incarceration if
they are captured. A student wishing to leave school faces only teachers forbidden
from physically stopping them; the student need only open the door and walk

away.’> Thus, while teachers may have some coercive power and authority over

 

°° Del. Super., C.A. N16-12-235 FWW, at 14 (Nov. 30, 2018).

31.201 A. 3d at 568.

32 Id.

33 Cape Henlopen School District 2017-18 Student Code of Conduct, at 10: “No
Cape Henlopen School District employee may inflict or cause to be inflicted
corporal punishment on a student.”

19
their students, the magnitude of such power and authority unquestionably pales in
comparison to that of a police officer over an arrestee.

Fourth, I note that even if the § 219 exceptions did apply to teachers
generally, said exceptions would not apply in-the current case based on any
conceivable interpretation of the facts alleged in the Complaint. The Complaint
fails to allege any facts that show Dutton either had or utilized any significant
degree of coercive power or authority over Theresa in performing the alleged
sexual assault. The Plaintiffs do not allege that Dutton was Theresa’s teacher at
the time of the incident, only that he worked in the school theater. Further, there
are no allegations that suggest Dutton attempted to use his position or authority,
whatever it was, to coerce Theresa into consenting or allowing him to touch her.
Accordingly, I find that no “reasonable interpretation” of the facts alleged in the
Complaint exists to support respondeat superior liability against the Board for the
torts of Dutton based on his alleged sexual assault of Theresa.

iii. Theresa’s Gross Negligence Claim Against the School Defendants

The School Defendants argue that Theresa’s gross negligence claims against
them should be dismissed because there are no factual allegations in the Complaint

that could support an inference that Dutton’s sexual assault of Theresa was

20
foreseeable. Conversely, the Plaintiffs assert that the School Defendants
intentionally ignored several warning signs that suggested that Dutton posed a
danger to students at the school.

Gross negligence requires more than a showing of mere inadvertence or
inattention, the actions in question must represent an “extreme departure from the
ordinary standard of care.”>* An employer may be liable for the grossly negligent
“employment of improper persons involving risk of harm to others, or in the
supervision of [an] employee’s activity.”*> “The deciding factor is whether the
employer had or should have had knowledge of the necessity to exercise control
over its employee.”°°

In this case, the Complaint is devoid of any factual allegations which
reasonably support the idea that the Schoo] Defendants should have foreseen that
Dutton would sexually assault Theresa. “An event is foreseeable if it is something
which should have been reasonably foreseen or reasonably anticipated.”*’ The

Plaintiffs are correct that Dutton need not have actually molested another student

to make it foreseeable that he would violate Theresa. However, to support a claim

 

34 Hecksher v. Fairwinds Baptist Church, Inc., 115 A. 3d 1187, 1199 (Del. 2015).
39 Td.

36 Td.

37 Pitts v. Delaware Elec. Co-op., Inc., 1993 WL 58495, at *2 (Del. Super. Jan. 29,
1993).

21
of gross negligence against the School Defendants, there must at least have been
some indication of which they were aware that Dutton was or may have been
sexually interested in high school students. The Plaintiffs have failed to make such
a factual allegation here.

The majority of the Plaintiffs’ allegations only show that the School
Defendants were aware that Dutton was a “scary” person that would say mean and
hurtful things to students. Though these allegations suggest that Dutton had a short
temper, there are no claims that he ever touched or physically harmed a student in
any way.

Next, the Plaintiffs’ claim that Dutton’s use of the word “fiery” to a female
student was “sexually suggestive.”°® This is simply incorrect. Merriam-Webster
defines “fiery” as “full of or exuding emotion or spirit” or “easily provoked.”*”
Therefore, I reject the Plaintiffs’ suggested inference as wholly unreasonable.

The Plaintiffs’ also claim that Dutton’s sexually suggestive comment and
wink directed at a 20 year old intern was a danger sign from which the School

Defendants could have foreseen his sexual assault of Theresa. As a matter of law,

I reject the idea that the verbal sexual harassment of a legal adult and colleague

 

D1. 2093.
39 “Fiery.” Merriam-Webster.com. 2019. https://www.merriam-webster.com (Nov.
6, 2019).

22
should operate to put an employer on notice that an offending employee might go
on to commit sexual assault against a minor. To hold otherwise would create an
untenable situation where schools would effectively be forced to fire any teacher
caught flirting with another.

I do agree with the Plaintiffs that Dutton asking a female high school senior
“How good do you fuck?” represents an act sufficient to put the School Defendants
on notice of the need to “exercise control” over him. However, this comment was
only brought to the School Defendants’ attention over two weeks after he allegedly
groped Theresa. There are no allegations that Dutton sexually assaulted or touched
Theresa or anyone else after this report, only that he was seen on school property
and in the theater. Seeing someone is not a legally recognizable or compensable
harm. Therefore, I find that the School Defendants are entitled to summary
judgment of Theresa’s gross negligence claim.

iv. Theresa and Kelly’s Premises Liability Claims Against the Board

The School Defendants have moved to dismiss Theresa’s premises liability
claim against the Board as untimely. The Plaintiffs argue in response that this
claim falls under the CVA and therefore has no statute of limitations.

In Count IV of the Complaint, the Plaintiffs re-allege their previous factual
allegations, state the standard for premises liability, and claim that the actions of

23
the Board were grossly negligent. I am unable to detect a substantive difference
between this claim and the gross negligence claim in Count III. Accordingly, I
need not reach the timeliness argument and dismiss this claim for the reasons
delineated in the previous section.”

The School Defendants have also moved to dismiss Kelly’s premises
liability claim against the Board. I find that dismissal of this claim is warranted as
the Plaintiffs have not alleged that Kelly suffered any physical injury or bodily
harm.*!

v. Theresa’s I[ED and NIED Claims Against the Board

The School Defendants assert that these claims are subject to Delaware’s
two-year statute of limitations period and are therefore time-barred. On this issue,
I agree with the Plaintiffs that Theresa’s IIED and NIED claims arising from
Dutton’s sexual assault fall under the CVA and thus have no statute of limitations.
However, the Plaintiffs are asserting these claims against the Board under the
theory of respondeat superior. In the above discussion of Theresa’s assault and

battery claims against the Board, I already determined that the Board could not be

found vicariously liable for Dutton’s torts against Theresa under the facts alleged

 

4° See supra, 19-22.
“1 See Restatement (Second) of Torts § 343 (1965).

24
in the Complaint.*? Therefore, I find that Theresa’s ITED and NIED claims against
the Board should be dismissed.
B. Claims Against Dutton

In their Response to Dutton’s Motion to Dismiss, the Plaintiffs explained
that they are only pursuing Theresa’s claims against Dutton for assault and battery
(Count II); gross negligence (Count III); intentional infliction of emotional distress
(Count V), and negligent infliction of emotional distress (Count VI). Dutton has
moved to dismiss Theresa’s claims for gross negligence, ITED, and NIED.

i. Theresa’s Gross Negligence Claim Against Dutton

In his Motion to Dismiss, Dutton argues that a reading of Count II makes it
clear that Theresa’s gross negligence claim is directed only against the School
Defendants. In response, the Plaintiffs explain that they are asserting a gross
negligence claim against Dutton as an alternative theory to the other intentional
torts included in the Complaint.

I agree with Dutton’s reading of Theresa’s gross negligence claim.
Although Count III is asserted against “All Defendants,” it alleges that the
“defendants” failed to, among other things, “supervise Dutton” even though they

“had actual or constructive knowledge and actual notice of prior misconduct by

 

42 See supra, 13-19.

25
Dutton which endangered students ...”*° Plainly, a claim against Dutton cannot
exist for a failure to supervise himself. Further, the factual allegations in the
Complaint concerning Dutton and his sexual assault of Theresa involve only
intentional acts. Therefore, I find that Theresa’s claim of gross negligence against

Dutton should be dismissed.

ii. Theresa’s ITED and NIED Claims Against Dutton

Dutton argues that Theresa’s ITED and NIED claims against him should be
dismissed because the Plaintiffs have failed to allege that Theresa suffered from
any physical injuries stemming from the sexual assault. The Plaintiffs counter that
an allegation of a physical injury is unnecessary for their ITED claim.
Additionally, they argue that they have alleged physical suffering on Theresa’s
behalf sufficient for a valid claim of NIED.

For a defendant to be found liable for ITED, it must be proven that they
“intentionally engaged in extreme or outrageous conduct that caused severe
emotional distress.”“* Conduct is outrageous if it “exceeds the bounds of decency

and is regarded as intolerable in a civilized community.”* Whether a defendant’s

 

“8 Complaint 11 63-70.

44 Hunt ex rel. DeSombre v. State, Dep't of Safety & Homeland Sec., Div. of
Delaware State Police, 69 A.3d 360, 367 (Del. 2013).

4S Td.

26
alleged conduct can reasonably be regarded as extreme and outrageous is a
question for the Court to decide.“

Here, Dutton’s alleged conduct is certainly outrageous and beyond what any
reasonable person could be expected to endure. Given the nature of his conduct,
the Plaintiffs are not required to allege bodily harm to establish a valid claim for
ITED.*”

Turning to the NIED claim, a plaintiff may recover for physical injuries
resulting from mental anxiety caused by a defendant’s negligence.** However,
transitory, non-recurring physical phenomena are not recognized as physical
illnesses.”

Aside from conclusory allegations of physical and emotional harm, the
Complaint only details Theresa’s initial reaction to the sexual assault. The
Complaint alleges that the touching made her feel “unsafe” and that she went to
her car to cry. Viewing this in a light most favorable to the Plaintiffs, it is
reasonable to infer that Theresa may have suffered additional, long lasting physical

and emotional damages. If the discovery process reveals that this is not the case,

 

46 Td.
47 Doe v. Wildey, 2012 WL 1408879, at *4 (Del. Super. Mar. 29, 2012).
‘8 Cooke v. Pizza Hut, 1994 WL 680051, at *3 (Del. Super. Oct. 3, 1994).
Td.
°° Complaint 1 23.

27
then Dutton may seek dismissal of this claim on a motion for summary judgment.

As it stands, I find that Theresa’s ITED and NIED claims should survive Dutton’s

Motion to Dismiss.

IV. CONCLUSION
The School Defendants’ Motion to Dismiss is GRANTED. Dutton’s

Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

Very truly yours,

pr

E. Scott Bradley

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