Doe v. New Eng Kern Hattin Homes

7ermont Court
Filed 25
Windha n nit

STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
WINDHAM UNIT Docket No. 21-CV-1251
JOHN DOE,
Plaintiff
ve

NEW ENGLAND KURN HATTIN HOMES,
Defendant

Decision: Defendant's Motion for Summary Judgment, Motion #64
Plaintiff John Doe, now an adult, was a student at Defendant Kurn Hattin's residential
school for underprivileged children from his first through sixth grade years. He asserts that he
was subject to physical and sexual abuse while there and alleges that there was a culture of
acceptance of abusive behavior on the part of staff that resulted in abuse by both staff and
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students. He raises five legal claims: gross negligence, breach of fiduciary duty, intentional .

infliction of emotional distress, gross negligent infliction of emotional distress, and battery. Kum
Hattin seeks summary judgment on all counts as a matter of law.

Plaintiff responded to Kurn Hattin's Statement of Undisputed Material Facts pursuant to
V.R.C.P. 56 (c). Plaintiff also filed a separate Statement of Undispued Material Facts pursuant to
V.R.C.P. 56 (c)(2) to which Kurn Hattin responded. Below is 2 summary of undisputed
admissible material facts derived from review of these documents. Proposed facts of both parties
are not included if the court determined from responses that the proffered facts were either
disputed, based on inadmissible evidence, not material to any claim, or expressions of personal
or legal opinion rather than fact.!

Undisputed Facts presented by Kurn Hattin
Plaintiff attended Kurn Hattin from 1968 to 1974, from first through sixth grade. Kurn
Hattin is a year-round residential school serving underprivileged children that has been operating
in Vermont since 1894, Plaintiff's brother and sister also attended the school, and his mother,
aunts, uncles, and grandmother visited him while he was there.

Plaintiff never reported any abuse at Kurn Hattin to his mother, grandmother, aunts, or.
uncles while he attended the school, except that he told his mother one time in a letter that a
teacher was mean. Plaintiff's mother did not speak to Kurn Hattin about his complaint.

' Pursuant to the Protective Order issued
by the court on March 8, 2022 and the related Confidentiality Agreement
which it cross references, the names of staff and students are not yet public. Therefore, in this decision, initials are
used in place of full names of staff and students, following the model in V.R.A.P. 34 (1).

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Plaintiff did not tell any administrator or employee at Kum Hattin about any alleged
abuse by Kurn Hattin employees G.D., C.M., H.R., B.K., P.W., M.M. [M.], H.S., M.S., M.C.,
"Ms. R.," C.K., P.R. or S.R., L.C. or student C.L. Plaintiff did not recall whether he told any
administrator or employee at Kurn Hattin about any alleged abuse by students W.S. or M.M.

Plaintiff told G.D. that student R.Q. hit him but does not recall whether he told any other
administrator or employee about any alleged abuse by R.Q. He did not recall whether he told any
administrator or employee about any alleged abuse by student R.C. He also did not recall
whether he told any administrator or employee about any alleged abuse by houseparents J.S. and
C.S. He informed J.F., Assistant Director, of abuse he suffered at the hands of a fellow student,
L.B., and Mr. F. responded by physically disciplining L.B.
Plaintiff's Kurn Hattin student file does not include any records supporting or indicating
that Plaintiff experienced any abuse at the school, nor any records supporting or indicating that
Plaintiff reported any abuse while he attended Kurn Hattin.
Kurn Hattin's September 1970 Annual Report notes that Kurn Hattin's psychologist
"continue[d1 to provide testing services and evaluations of the children," consulted "with the
adults to guide their efforts in dealing with children's problems," and conducted individual and
special group therapy withvery satisfactory results." Kurn Hattin's November 1973 Bulletin
reflects that the

[h]ealth of our children and staff has been excellent during the year [1973]. No
more that the usual number or minor coughs and colds have. 'been experienced.
Our physical and nurse have given close attention to preventive immunizations.
Our ordinary dental work has been kept up to date. A few children have been
referred and are undergoing orthodontic treatment. We havelbeen assisted to guide
our children and give attention to their mental health by some very competent
professionals engaged through a local agency. School progress has been very even
and in some respects outstanding. Extra help has been available and provided to
those children who seemed to need it most.

Plaintiff first communicated his allegations of abuse to Kurh Hattin only after he left
Kurn Hattin except for the report to Mr. F. about L.B.

Before Plaintiff attended Kum Hattin, his father left his mother to live with a 14-year-old.
His parents divorced when he was around the age of 6, and his mother was a young, 23-year-old
single mother of three children. Before he attended Kum Hattin, she supported the family
through assistance from New Hampshire's Department of Welfare and was not working while
she attended school. His father only visited him once in the six years that he attended Kurn
Hattin, but he visited his father after Kurn Harrin. When Plaintiff was asked during his
deposition if not having a father around impacted his life, he testified that he was "quite sure it
has. It's well documented, the effects of fatherless children."

Plaintiff has held over forty different jobs as an adult. Since 1999, he has worked in many
fields, including financial securities, auto sales, architectural stone'design, construction, web

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design, computer hardware, composite technology, cabinet making, and now presently as an
'
independent carpenter. He repeatedly quit jobs due to perceived 'unethical or legal issues
involved or irresponsible matters." His wife's physica! abuse included hitting him, slapping him,
hitting him with objects including plates, pots, and a metal pipe. At some point after separation,
his wife held him at knife point for two hours. He testified that she was psychologically abusive
telling him that he was "disgusting" and "worthless."
Plaintiff was convicted of criminal threatening and domestic|violence assault and
sentenced to three years ofjail time and two years of probation; he was only required to serve six
months in jail. He claims that other inmates attempted to physically 'abuse and rape him while he
was incarcerated. After his release in June 2017, he experienced homelessness for two to three
months. He lived in a motel for a short period, then a shelter. He had many concerns with how
the shelter was run. He described the shelter staff as "emotionally abusive" and found them to be
"irresponsible and negligent [in their] behavior and actions."
Plaintiff claims physical injuries of "back pain and instability and knee pain. He claims
to have "suffered from depression since the age of 6" and "Complex PTSD" and "a loss of
enjoyment of a life that has been filled with stress, anxiety, and low self-esteem."
Additional Undisputed Facts presented by Plaintiff?
Other students at Kurn Hattin forced Plaintiff to engage in oral sex and attempted anal
sex, including pushing their genitals into Plaintiff's face while making demeaning comments. In
orie instance another student named R.C. who was several years older than Plaintiff "forced
himself on [Plaintiff], forcing his erect penis in (Plaintiff's] face and into [Plaintiff's] mouth."
After this interaction, R.C. threatened to kill Plaintiff if he told anyone. In another instance,
another student named R.Q. forced Plaintiff to his knees and forced! his penis into Plaintiff's
mouth and face. Plaintiff was in many instances able to fight the other students off, who, in one
instance, repeatedly punched Plaintiff in the chest and shoulder for refusing to submit to them.

Plaintiff was dropped off a porch roof by two students.
The SSs [J.S.and C.S., houseparents] sexually, physically, and emotionally abused
Plaintiff. The SSs would force Plaintiff to endure daily physical exertion to the point of
exhaustion, prevent Plaintiff from using the bathroom, and force him to stand naked in his own
urine. While Plaintiff was forced to engage in physical exertion, Mr. S. "sat there with his hands
folded and watched [the boys] while bare naked, sweaty little trembling boys went up and
down."

The SSs would publicly humiliate Plaintiff and other boys for poor grades; require
Plaintiff to stand in the corner for hours; force Plaintiff and other boys to undergo nude

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As to many proposed facts in Plaintiff's Statement, Kura Hattin did not state that i t was undisputed or disputed but
instead relied on legal argument. In such cases, the court bas treated the proposed fact as undisputed for purposes of
this motion pursuant to V.R.C.P. 56 (e), which provides: "Ifa party fails to properly support an assertion of fact or
fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) (2) consider the fact undisputed for purposes of the motion."

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inspections, including of their genitalia, in front of the SSs and other children. This was called a
"daily skidmark check at 4:30 every day." This meant that "[the boys] had to drop [their] pants in
front of the entire rest of the population and be inspected, our arses, our underpants, while nude
in front of Mrs. S, Mr. S, and all the other boys at Kurn Hattin."

Mrs. S would watch him and the other boys shower. The SSs would have Plaintiff and
other boys line up naked in the shower room to be.visually inspected while each boy was
required to twirl nude before being permitted to shower. During showers, the SSs would ogle
cach of the boys while being "admonished to wash" their genitals thoroughly. When the boys did
not do as Mr. S. asked, he would smack the boys' bare buttocks. The SSs subjected Plaintiff to
this abuse "every day" from the time that Plaintiff first attended Kur Hattin.

Principal H.R. smashed Plaintiff's "head and face into the cement floor" in front of the
entire student body.

After the SSs had been terminated, B.K. and Mrs. K. became Plaintiff's houseparents in
his third year at Kurn Hattin. Ms. K. sexually abused Plaintiff by watching Plaintiff shower
without any safety, educational, or other legitimate purpose or need lo watch Plaintiff shower.
Ms. K. regularly "ogled" and leered at Plaintiff while he showered same excuse that the
using the
SSs had, that she was doing so to prevent horseplay. This practice of watching young naked boys
shower ceased when J.K. and J.K. became Plaintiff's houseparents. |

In one instance, after Ms. K. had become angry with she "immediately dragged
Plaintiff,
[Plaintiff and another student} downstairs past the locker room into the bathroom, and [stood1
there and [told] us to take our pants off. We take our pants off, and then she hands us some dry
rags. And then she tells us to scrub the floor with our pants off, which we did back and forth,
back and forth, back and forth on our bare hands and knees until that floor shown polished with a
dry rag."

M.C., the first and second grade teacher, whipped and smacked Plaintiff during his first
and second grade years. Ms. R. [first name unknown}, Ms. C.'s teaching assistant, also engaged
in this. In one instance, Plaintiff recalled that "[s]he hauled me the supply closet, yanked
into
down my pants and proceed[ed] to whip me quite thoroughly and painfully with her own favorite
yardstick." The fifth-grade teacher, M.S., engaged in frequent physical assaults of Plaintiff,
including using a yardstick to smack Plaintiff with it on the head or shoulders.
G.D. became Plaintiff's houseparent after Mses. [sic] K. and K. Ms. D. made Plaintiff
watch while the other boys stripped to their underwear during a "game" during which the boys
were required to gather in a Twister game-like ball on the floor duri ng which Ms. D. would take
Polaroid pictures of them. Plaintiff recalled that in one instance, this "game" had "tended up with
all of the B. boys smashed together into a "writhing mass of
young boys, sans garments, but for
their underpants." While the boys stood together, Ms. D. ran out of the room and then returned
with a Polaroid instant camera. Plaintiff knew when he was a young boy that this game was
"bizarre," uncomfortable, and humiliating.

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During the summer of1971, Plaintiff stayed at Kurn Hattin. During that summer, C.M.,
the farm manager, smacked Plaintiff in the back of the head on occasions if Plaintiff's
numerous
work displeased Mr. M. or if Plaintiff was unable to pick up heavy hay bales.

P.W., the then-Director's wife, physically grabbed and screamed at Plaintiff. L.C., the
seventh-grade teacher physically grabbed and screamed at Plaintiff. C. was also a coach and
Mr.

would supervise the boys when they would go to the girls' department to use the swimming pool.
In the changing room at the pool, Mr. C. would change in front of the boys, including Plaintiff,
and would put his penis "directly in" Plaintiff's face after Mr. C. had changed into swim trunks,
which the boys were not permitted to wear while swimming.

C.G., who stood in as Assistant Director when Mr. F. was absent in one instance, caught
Plaintiff cutting the grass [cut across a section of grass rather than use a set path1, which Plaintiff
did not know was prohibited. Mr. G. proceeded to take Plaintiff to Mr F.'s office, "yanked"
Plaintiff's pants down, bent him over Mr. F.'s desk, and proceeded to "violently whip" Plaintiff's
buttocks with a leather belt until it was raw. Mr. G. was "filling in for assistant director J. F."

J.F. was the Assistant Director at Kum Hattin during the time Plaintiff was a student. Mr.
W. was the Director from 1963 unti] 1976. Mr. F. knew that L.B. had beaten Plaintiff after
Plaintiff reported this beating to Mr. F. When Plaintiff reported that L.B. had beaten Plaintiff to
Mr. F., Mr. F. responded by whipping L.B. with his belt.

Plaintiff suffers from "constant anxiety," including "physically manifesting flashbacks"
which he claims is a result of his experience at Kurn Hattin. Plaintiff claims that his experience
at Kurn Hattin has led to a "loss of enjoyment of a life that has been filled with stress, anxiety,
and low self-esteem."

As to Ms. K., Plaintiff told his mother about how she was mean. Ms. K. read that letter
and thereafter became "incredibly defensive and hostile."

Everyone was aware of the abuse occurring at Kur Hattin. |"[I]t was so common there,
things were observed all the time . . "abuse was an everyday, normal occurrence'. . . 'there were
no secrets there as far as the staff went.'"

Analysis
Defendant Kurn Hattin argues that it is entitled to summary,judgment on each of the five
counts in the Amended Complaint: gross negligence, breach of fiduciary duty, intentional
infliction of emotional distress, gross negligent infliction of emotional distress, and battery.
Plaintiff opposes summary judgment on all counts.
A party is entitled to summary judgment when "the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." V.R.C.P. 56(a). "The moving party has the burden of proof, and the opposing party must
be given the benefit of all reasonable doubts and inferences in determining whether a genuine
issue of material fact exists." Price v. Leland, 149 Vt 518, 521 (1988), Tillson v. Lane, 2015 VT
121, 1 7, (citing Smith v Parrott, 2003 VT 64, q 6,). The court resolves all reasonable doubts and

5
inferences in favor of the non-moving party. Zillson, 2015 VT 121, 7 (citing Smith, 2003 VT
64,46).
Gross Negligence

Plaintiff relies on 12 V.S.A: § 522, the statute of limitations for actions based on
childhood sexual and physical abuse, in bringing his claims against Kurn Hattin at this time, as
the statute provides that a claim "may be commenced at any time after the act alleged to have
caused the injury or condition." 12 V.S.A. § 522 (a).? The statute is specific that it authorizes
damages against a third-party that is "an entity that employed, supervised, or had responsibility
for the person allegedly committing the sexual abuse only if there is a finding of gross
negligence on the part of the entity." 12 V.S.A. § 522(d).
"Childhood sexual abuse" means any act committed by the defendant against a
complainant who was under 18 years of age at the time of the act and which act
would have constituted a violation of a statute prohibiting lewd and lascivious
conduct, lewd or lascivious conduct with a child, felony sexual exploitation of a
minor in violation of 13 V.S.A. § 3258 (c), sexual assault, or aggravated sexual
assault in effect at the time the act was committed 12 VS. A. § 522(c)(1).

Similarly, the statute for actions based on childhood physical abuse authorizes damages against a
third party that is "an entity that employed, supervised, or had responsibility for the person
allegedly committing the physical abuse only if there is a finding of gross negligence on the part
of the entity." 12 V.S.A. § 522(e).
'Childhood physical abuse' means any act other than an attempt committed by the
defendant against a complainant who was under 18 years of age at the time of the act and which
act would have constituted a violation of a statute prohibiting agpravated assault in effect at the
time the act was committed." 12 V.S.A. § 522(c)(1)..

With respect to the physical abuse claim, Defendant claims jthat Vermont did not have an
"ageravated assault" statute until 1971, apparently arguing that Plaintiff cannot rely on 12 V.S.A.
§ 522 as a basis for any alleged childhood physical abuse prior to that time. Plaintiff was at Kurn
Hattin from 1971-1974, so some incidents could have occurred that time.
during
The elements of a cause of action of gross negligence are the elements of a negligence
action-duty, breach, causation, and injury* plus an additional heightened requirement that in
order for conduct to amount to gross negligence, it must be "more than an error ofj udgment,
momentary inattention, or loss of presence of mind." Rivard v, Roy, 124 Vt. 32,.35 (1963). Gross
negligence "amounts to a failure to exercise even a slight degree of care and an indifference to
the duty owed [to another]." Hardingham v. United Counseling Service of Bennington Cty., Inc.,
164 Vt. 478, 481 (1995).

3The statute retroactively eliminated the prior limitations period for both childhood sexual abuse and childhood
physical abuse claims. 4.8. a S.U. et al, 2023 VT 32.
"
Zeno-Ethridge v. Comcast Corporation et al., 2024 VT 16, 132. The injury must be to the physical body and not
solely a mental or emotional harm. /d. at { 33-36.

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Duty of Care

Defendant argues that Plaintiff has failed to provide evidence of the existence of a duty of
care, which is fundamental to a negligence claim See Lewis v. Bellows Falls Congregation of
Jehovahs Witnesses, 95 F. Supp. 3d 762, 766 (D. Vt. 2015) ("To hold a defendant liable for
negligence, a plaintiff must establish the defendant owed her a particular duty of care, it breached
that duty of care, and the breach harmed the plaintiff'). Kum Hattin argues that the Plaintiff
cannot prove the element of duty because Plaintiff did not report incidents of abuse and thus
Kurn Hattin had no reason to know that abusive conduct was occurring; therefore, no duty arose
to take action to prevent it.

While there is generally "no duty to control the conduct of another to protect a third
person from harm," duty may exist if there is a "special relationship between two persons which
gives one control over the actions of another. Jd. at 768. The Restatement (Second) of Torts
recognizes in Sections 317 and 319 that a special relationship can create a duty on the part ofa.
defendant to contro1 the actions of others to protect from harm.

Another type of special relationship arises when one "take[s] charge of helpless persons,
even when they are not required to do so," creating a duty to under Section 324 of the
protect
Restatement (Second) of Torts. Sabia v. State, 164 Vt. 293, 304 (1995) (superceded on other
grounds, see Stocker v. State, 2021 VT 71, 1 19, 215 Vt. 432); Lewis, 95 F. Supp. 3d at 768-769.
Section 324 imposes liability on an actor who takes charge of a person in need of aid, such as a
minor, for "failure . . .to exercise reasonable care to secure the safety of the other while within
the actor's charge." Restatement (Second) of Torts § 324. /d. at cmt; b ("i]t applies also to one
who takes charge of another who by reason of his youth is incapable of caring for himself"). The
undisputed facts show that Kurn Hattin undertook to provide a full-time living environment for
young children with underprivileged backgrounds.
Kum Hattin is also subject to a duty by virtue of its role as a principal "conducting an
activity through servants or other agents" as defined by Section 213 of the Restatement (Second)
of Agency. Lewis, 95 F. Supp. 3d at 767 ("[i]n Vermont, a claim of negligent supervision is based
on the Restatement (Second) of Agency § 213"). The duties related|to supervision under Section
213 include exercising due care in relation to employing and retaini ng employees, giving
directions to agents, and preventing negligent conduct on property in the principal's control.
Restatement (Second) of Agency § 213. See e.g., /d. at cmt. c ("thedirections may be negligent
because the principal does not anticipate circumstances which he should realize are likely to
arise"); id. at cmt. d ("[t}]he principal may be negligent because he has reason to know that the
servant or other agent, because of his qualities, is likely to harm others in view of the work or
instrumentalities entrusted to him").

Kurn Hattin undertook to assume full-time care of young underprivileged children-in
essence to act in loco parentis to a group of young children who had already experienced
deficiencies in their upbringing. It is logical to assume that such ch ldren needed oversight to
provide them with a safe secure environment, that some of the children may have experienced
abuse themselves and might pose a safety risk to other children, and that some adults attracted to

7
the role of houseparents or teachers might have a prurient interest in|children themselves or have
difficulty distinguishing between acceptable discipline and physical abuse.
As a result, Kurn Hattin had the obligation to staff the institution with teachers and house
parents who would provide the children with a safe nurturing environment free from physical
abuse, and to institute procedures to ensure the physical safety of the children. It was responsible
for monitoring the actions of its own staff and the children under its care It cannot claim that its
duty arose only when it received reports of misbehavior on the part of students or staff. It was its
duty to foresee specific risks that were reasonably likely to occur in the environment it created
and take active steps to prevent predictable harm.

It differs from the duty of a high school where the children attend for limited hours on
weekdays and the harm that occurred was beyond what might be anticipated, as in
reasonably
Edson v. Barre Supervisory Union No. 61, 182 Vt. 157 (2007) and Stopford v. Milton Town
School District, 209 Vt 171,116 (2018). In Edson, the Court left open the possibility of
circumstances under which a school could be liable for negligent supervision Id.

In this case, the school was 100% responsible for the welfare, safety, and protection of
very young children 24 hours each day on a long-term basis, somet mes all year round, in a
community made up of children with problematic upbringings. This is not to suggest that it was
strictly liable for every possible incident. However its duty is defined by the nature of the
responsibility it undertook, which was to provide a safe, non-abusive environment for vulnerable
young children full time. Kum Hattin could reasonably have foreseén that without vigilant
oversight, patterns of abusive and/or sexualized behavior on the part of both students and staff
could be anticipated and preventive or monitoring measures needed. The court reaches no
conclusion that this is what happened, but the undisputed facts are sufficient for the jury to
conclude that a special relationship existed that gave Kum Hattin the duty to protect Plaintiff and
other children from abusive behavior on the part of both teachers and other children, irrespective
of whether or not incidents were reported to the administration. Jurors can evaluate the reasons
that reports are not made in such an environment.

Breach, including heightened requirement for a claim of gross negligence

To determine breach of duty in a regular negligence case, the jury must normally
determine whether the defendant failed to avoid or prevent injury or harm to the claimant.
Determination of breach of the duty of care usually depends on an evaluation of what a
reasonably prudent person might reasonably have foreseen or expected to happen, given the
circumstances. The standard is heightened for a claim of gross negligence.

Gross negligence "amounts to a failure to exercise even a slight degree of care and an
indifference to the duty owed [to another]." Hardingham v. United|Counseling Service of
Bennington Cty., Inc., 164 Vt. 478, 481 (1995). Thus to find a breach the jury must determine
that Kum Hattin failed to exercise even a slight degree of care and was indifferent to its duty to
the students. "The existence of such negligence in a case turns almost entirely on its own
peculiar factual situation" and is generally a question of fact for the jury. Rivard 124 Vt. at 35,

8
36. Consequently, "an allegation of gross negligence may be dismissed by the court only if
reasonable minds cannot differ." Kennery v. State, 2011 VT 121, 191 Vt. 44,64.
Al,
In this case, the court concludes that reasonable minds could differ over whether
Plaintiff's evidence meets this standard. Depending on how the jury evaluates the evidence, it
could conclude that Kurn Hattin had a duty to Plaintiff, and that it was indifferent to its duty to
Plaintiff and failed to exercise even a slight degree of care.
Causation and Harm

Plaintiff claims that he has PTSD (post traumatic stress disorder) as a result of his
experiences at Kurn Hattin. Defendant notes that the only expert who evaluated Plaintiff
concluded that his experience at Kun Hattin was an Adverse Childhood Experience, but that
Plaintiff suffered many Adverse Childhood Experiences and the expert could not isolate the
extent of causation of his Kurn Hattin experiences versus other-events in relation to a clinical
diagnosis. Defendant thus argues that Plaintiff cannot prove either causation or harm.
The court agrees that expert opinion testimony would be necessary to support evidence
that Plaintiff's experience at Kum Hattin was a direct cause of PTSD. Plaintiff himself is not .

qualified to testify that abuse at Kurn Hattin caused any specific clinical mental or emotional
diagnosis; expert testimony would be needed. Human Rights Commission Labrie, Inc., 164 Vt.
237, 247 (1995). Nonetheless, Plaintiff may testify as to the extent tb which abusive events at
Kurn Hattin arising from claimed gross negligence caused physical hurt to his body. fd.

He may also testify as to humiliation and emotional distress e experienced without the
need for expert medical testimony. The Vermont Supreme Court has upheld an award for
emotional distress damages in a housing discrimination case where a complainant testified about
the humiliation and emotional distress experienced, without the need for expert medical
testimony, as such emotional distress was not beyond the understanding of a layperson and could
be inferred from the circumstances. Human Rights Commission v. Labrie, Inc. at 248. The Court
held that "[mJedical evidence on mental or physical symptoms is not required." Id.

In summary with respect to Plaintiff's claim of abuse based on gross negligence,
Defendant's motion for summary judgment is denied, There is sufficient evidence on each
element to go to trial, with the evidence to be evaluated by the jury!

Other causes of action
Plaintiff has also asserted four other causes of action: breach of fiduciary duty, intentional
infliction of emotional distress, gross negligent infliction of emotional distress, and battery.
Defendant argues that the statutory requirement of a finding of gross negligence makes 12 V.S.A.
§ 522 only applicable to claims sounding in negligence, and that therefore the claims for breach
of fiduciary duty, ITED, and battery are barred because they are not!negligence-based claims. It
also argues that Plaintiff's claim of negligent infliction of emotional distress is inapplicable
because it does not require a finding of gross negligence.

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12 V.S.A. § 522 does not specify that any particular civil Causes of action are either
required or disallowed for claims pursued in reliance on the statute of limitations specified in that
statute, as long as the claim is for injury suffered as a result of childhood sexual or physical
abuse and"would have" satisfied the elements of specified crimes. The gross negligence
requirement is only applicable if the defendant is an entity that "employed, supervised, or had
responsibility for the person allegedly committing the [physical or sexual] abuse" and thus the
requirement of a gross. negligent finding is inapplicable to a suit aga nst an individual defendant
alleged to have committed childhood abuse.

Therefore, a plaintiff may seek to rely on the statute of limitations in 12 V.S.A. § 522
regardless of the particular civil cause of action it chooses to pursuelas long as other
requirements are met. The statute specifies that if the defendant is an entity that employs or
supervises others, there must be a finding of gross negligence. This is a requirement that is in
addition to the other elements of the cause of action chosen if it is not already an element of the
claim. For the reasons stated above, Plaintiff is not precluded from seeking to prove gross
negligence at trial and thus is not precluded from asserting the four other claims as well.

Consequently the court addresses Defendant's motion for on those
summary judgment
four claims based on the undisputed facts and the elements of those claims.

Breach of fiduciary duty

Defendant argues that the existence of a fiduciary duty is a question of law for the court,
relying on McGee v. Vermont Federal Bank, 726 A.2d 42, 44 (Vt. 1999), and that no fiduciary
relationship exists between a school and its students. Defendant notes that the Vermont Supreme
Court has never recognized a fiduciary relationship between a student and a school or a school
official, relying on Knelman v, Middlebury Coll., 898 F. Supp. 2d 697,717 (D. Vt. 2012) in which
the Vermont District Court wrote that courts in the Second Circuit Have held that "a fiduciary
relationship generally does not exist in the school context." Jd.
Black's Law Dictionary describes fiduciary duty as follows:
A duty of utmost good faith, trust, confidence, and candor owed by a fiduciary
(such as an agent or a trustec) to the beneficiary (such as thé agent's principal or
the beneficiaries of the trust); a duty of utmost good faith, trust, confidence, and
candor owed by a fiduciary (such as a lawyer or corporate officer) to the.
beneficiary (such as a lawyer's client or a sharcholder); a duty to act with the
highest degree of honesty and loyalty toward another person and in the best
interests of the other person (such as the duty that one partner owes to another).
For example, directors have a duty not to engage in self-dealing to further their
own personal interests rather than the interests of the corporation.
DUTY, Black's Law Dictionary (12th ed. 2024)
The Vermont Supreme Court has stated that a fiduciary relationship may arise where one
person "is under a duty to act for or to give advice for the benefit of another upon matters within
the scope of the relation." Handverger v. City of Winooski, 191 Vt. g4, 89 (2011) (citing Cooper

10
v Cooper, 173 Vt. 1, 7 (2001)). To become fiduciary in nature, a relationship must "ripen into
. one in which [one party] were dependent on, and reposed trust and confidence in,[another party1
in the conduct of their affairs." Cap. Impact Corp. v. Munro, 162 Vt..6, 10 (1992). These
descriptions, which are appropriate for guardianship and trustceship relationships, do not match
the relationship between Kum Hattin and Plaintiff attending the school as a young child.

Plaintiff relies on Doe v. Hotchkiss Sch., in which the United! States District Court for the
District of Connecticut found that a school had a fiduciary duty to its private high school
boarding student because of its superior knowledge and control of the student's environment. No.
3:15-CV-160 (VAB), 2019 WL 1099027, at *16 (D. Conn. Mar 8, 2019). The court relied
exclusively on Connecticut state law precedent.
The court concludes that this is not precedent in Vermont, and the reasoning of the
Vermont District Court in Knelman is more persuasive than that of the Connecticut District
Court. Moreover, attributing a fiduciary duty to the relationship between Plaintif when he was
ages 6-12 and Kurn Hattin, a residential school for underprivileged children, is not consistent the
general concept of a fiduciary relationship and duty as described in Black's Law Dictionary. The
fact that a duty based on a "special relationship" may have been docs not equate to a
present
legal determination that there was a fiduciary relationship

Defendant's motion for summary judgment is granted as to this cause of action.

Intentional Infliction of Emotional Distress

The elements of this cause of action are " 'outrageous conduct, done intentionally or with
reckless disregard of the probability of causing emotional distress, resulting in the suffering of
extreme emotional distress, actually or proximately caused by the outrageous conduct.' "
Baldwin v, Upper Valley Servs., Inc., 162 Vt. 51, 55 (1994)(citing Grump v. P & C Food Markets,
Inc., 154 Vt. 284, 296 (1990)).

Prohibiting elementary school age children from using the bathroom, requiring them to
stand in their own urine, requiring them to scrub a floor on their hands and knees while naked,
and smashing a child's head and face into a cement floor are non- exclusive examples of incidents
that satisfy the required elements such that Defendant is not entitled to blanket summary
judgment on this cause of action. Because Defendant is an entity that acted through its teachers,
houseparents, and officials, the jury will also be required to find gross negligence. The court has
determined above that there is sufficient evidence to proceed to trial on gross negligence Thus
Defendant's motion for summary judgment is denied as to this claim

Gross Negligent Infliction of Emotional Distress

Negligent Infliction of Emotional Distress is a cause of action that applies when a
plaintiff makes a showing for recovery of emotional distress damages in situations where there
has been concurrent physical harm of some sort in the vicinity of the plaintiff. Zeno-Ethridge v.
Comcast Corporation et al., 2024 VT 16, 16. The required elements of negligent infliction of
emotional distress are different depending on whether plaintiff suffered a physical impact from
an external force or not. If there was physical impact a plaintiff recover for emotional
may
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distress stemming from the incident during which the impact occurred. If there was no physical
impact, the plaintiff must show that (1) he was within the "zone of danger" of an act negligently
directed at him by defendant, (2) he was subjected to a reasonable fear of immediate personal
injury, and (3) he in fact suffered substantial bodily injury or illness as a result. Brueckner v.
Norwich Univ., 169 Vt. 118, 123, (1999) (upholding jury verdict finding Norwich University
vicariously liable for the assault and battery and negligent infliction of emotional distress caused
by a cadre because the cadre was acting within the scope of employment).
Plaintiff cites several incidents described in the undisputed facts as grounds for this
claim: being dropped off a porch roof; being forced by the SSs to engage in exhausting physical
exertion or stand naked in his own urine or not be allowed to use the bathroom; Principal R.
smashing his head and face into the cement floor in front of the entire student body; Ms. K.
requiring him to remove his pants and scrub the floor on bare hands and knees; being whipped
and smacked by his first and second grade teacher; having his pants yanked down and being
whipped with a yardstick by a first or second grade teaching assistant; being smacked with a
yardstick on his head and shoulders by a fifth grade teacher; being smacked on the back of the
head several times by the farm manager; being physically grabbed and screamed at by the
Director's wife; and being physically grabbed and screamed at by the seventh grade teacher.> Not
all of these meet the requirement of facing physical impact from an external force, although
many of them do.° There is sufficient evidence for the jury to evaluate whether the burden of
proof for this claim is met.
Based on this determination and the determination set forth above that there is sufficient
evidence to proceed to trial on the required finding of gross negligence, Defendant's motion for
summary judgment is denied as to this claim.

Battery
"
Battery is an intentional act that results in harm to another. Jattery. . .is an intentional
act that results in harmful contact with another." Christman v, 2005 VT 119, 16 (citing
Davis,
Restatement (Second) of Torts § 13 (1965)). Defendant argues that no evidence supports a
finding that Kurn Hattin leadership directed anyone to cause harm to Plaintiff, and that Kum
Hattin cannot be vicariously liable for such a tort against Plaintiff because it was not within the
scope of employment of any Kum Hattin employee.

The court accepts the premise that Kurn Hattin leadership did not direct anyone to harm
Plaintiff. Under Vermont law, "there is no requirement that the master specifically authorize the
precise action the servant took. ... Such a requirement would mean that there could rarely be -

vicarious liability for intentional torts because the master would not specifically authorize the
commission of an intentional tort. The law is to the contrary. See Restatement (Second) of
"
Agency §§ 230, 231 (1958); Sweet v. Roy, 173 Vt. 418, 432 (2002.

5

6
Defendant's Response to Plaintiff's Statement of Undisputed Material Facts, J] 3, 5-6, 17, 20-23, 27-29.
The "zone of danger" alternative is inapplicable to the incidents described in the undisputed material facts.

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As to whether conduct in the nature of abuse was within the scope of employment,
Restatement (Second) of Agency § 229(1) is instructive. The Vermont Supreme Court relied on it
in ruling that "[t]o establish that a servant's conduct falls within the scope of his or her
employment, a plaintiff must demonstrate that the conduct: '(a) ... is of the kind the servant is
employed to perform; (b) ... occurs substantially within the authorized time and space limits; (c)
. is actuated, at least in part, by a purpose to serve the master; and case in which force is
(d)iina
intentionally used by the servant against another ... is not unexpectable by the master.'" Doe v.
J
Forrest, 2004 VT 37, 15, 176 Vt. 476.
The teachers, houseparents, and other staff at Kurn Hattin, acting in loco parentis, had
responsibility for oversight of the children's behavior, including the use of discipline as well as
enforcement of socially acceptable standards of personal modesty and sexualized behavior.

Defendant argues that corporal punishment was acceptable until 1983. That does not
mean that all types of corporal punishment are exempt from being considered abusive. There is a
difference between a measured spanking with an open hand on the buttocks of a clothed child
and a vicious beating, or a form of corporal punishment that involves unnecessary exposure of
nakedness to others. Managing discipline appropriately was certainly within the scope of
employment of the staf at Kurn Hattin. The administration had reason to expect that some of its
staff would have difficulty observing appropriate boundaries. Incidents alleged by Plaintiff to be
battery on the part of staff can reasonably be considered within the scope of the employees'
obligation to administer discipline and exercise behavioral oversight of the children, and thus
within the scope of employment
me
Plaintiff's claims of battery against Kurn Hattin based on viearious liability for acts of its
staff may be actionable when "the servant purported to act or to speak on behalf of the principal
and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the
existence of the agency relation." Restatement (Second) of Agency, § 219(2)(d). By delegating to
staff the authority to impose discipline on the children, Kum Hattin accepted the possibility of
vicarious liability for battery that occurred through excessive use of force in the guise of
discipline.
The undisputed fact that the school principal smashed Plaintiff's "head and face into the
cement floor" is sufficient to overcome Defendant's motion for judgment on the claim
summary
of battery. As with all the other claims, because Defendant is an entity that acted through its
teachers, houseparents, and officials, there must be a finding of gross negligence at trial in
addition to findings related to the other clements of battery.

Defendant's Argument Based on Lack of Expert Testimony on Damages

Kurn Hattin argues that-Plaintiff cannot prove which of his|claimed damages were caused
by Kurn Hattin as opposed to other potential causes. Kurn Hattin is correct that Plaintiff himself
cannot purport to testify that his Kurn Hattin experience caused specific psychological injuries,
and since he has no expert he cannot claim damages for specific psychological or medical
diagnoses such as PTSD. Sweet v. St. Pierre, 209 Vt. 1 (2018) (upholding the trial court's ruling
that an alleged assault could not reasonably be found to have caused the psychological and

13
physical injuries alleged by defendants in the absence of expert testimony). "Expert testimony is
ordinarily required to prove medical causation." /d. at ]26.

Nonetheless, he is not precluded from providing testimony that physical or sexual abuse
he experienced caused him to have bodily injuries and temporary or permanent impact, such as
mental anguish, pain and suffering, or loss of enjoyment of life. Vermont courts have long
admitted plaintiffs' testimony about the emotional effects of their injuries and the activities that
they now seek to avoid or in which they can no longer participate. See, e.g., Thayer v. Glynn, 93
Vt. 257, 106 A. 834, 835 (1919) ("Nor was there error in refusing to strike out the plaintiff's
statement that since the accident he was nervous and did not like to drive in the nighttime. This
was nothing more than his way of describing the nervous condition in which the accident left
him, and was clearly admissible on the question of damages.") (citing Rea v. Harrington, 58 Vt.
181 (1886)). Dobbs describes that non-pecuniary damages are not compensatory in the sense of
covering a money loss, nor punitive, but "to establish and vindicate a right that is deemed
important, even though not pecuniary in its immediate consequence." Dobbs' Remedies § 3.1.

Expert testimony is not required if the impact of an experience of abuse can easily be
understood by jurors on the basis of common knowledge. Human Rights Commission v. Labrie,
Inc. (emotional distress damages in a housing discrimination case upheld where a complainant
testified about the humiliation and emotional distress experienced, without the need for expert
medical testimony. 164 Vt. 237 (1995)). While Plaintiff may not testify about matters of
causation or harm that require expert testimony, he can testify to the extent that causation and
harm can be understood by jurors as a matter of common experience. Thus, Defendant's
argument for summary judgment based on lack of expert testimony is denicd.

Summary and Order
For the foregoing reasons, summary judgment is granted to Defendant on Plaintiff's
claim based on fiduciary duty; otherwise, summary judgment is denied.

A pretrial status conference will be scheduled.

Electronically signed September 23, 2025 pursuant to V.R.E.F. 9 @

Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned

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