ortiz v. derby school district

7ermont Superior Court
Filed 05/09/24
Orleans Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Orleans Unit Case No. 284-10-19 Oscv
247 Main Street
Newport VT 05855
802-334-3305
www.vermontjudiciary.org

Ortiz et al vs. Derby Town School District et al

ENTRY REGARDING MOTION
Title: Motion for Summary Judgment (Motion: 13)
Filer: Pietro J. Lynn
Filed Date: October 17, 2023

The motion is GRANTED IN PART and DENIED IN PART.

The case before the Court concerns what liability, if any, attaches to a school district for the
actions of a special education teacher, employed by the district, who acts in a physical and criminal

manner toward a special needs student. Immediately before the Court is a motion for summary

judgment filed by Defendants Derby Town School District and North Country Supervisory Union's

(together "the District") concerning the District's liability to Plaintiffs Jeremy Glodgett and J.G. on
both Plaintiffs' vicarious liability claims as well as their more direct claim of negligent supervision.

The Court has considered the parties' arguments and issues the following decision.

Factual Background

The following facts are either undisputed or are recited with all reasonable doubts and
inferences going to the Plaintiffs' versions of events for the purposes of the instant motion.

Morisseau v. Hannaford Bros., 2016 VT 17, 112.

J.G. is a special needs student who was enrolled in the District at Derby Elementary School
during the 2016-17 school year. At the time, J.G. was a 6-years old. J.G. has a diagnosis of autism

spectrum disorder, and he attended school subject to an Individual Educational Plan (EP) that the
District, working with J.G.'s parents, had created and put into place. Due to his disabilities, J.G.
required one-on-one support from the District and its staff on a daily basis. At the time, J.G. was
largely non-verbal and exhibitied troublesome physical behaviors including kicking, hitting, and

biting. These behaviors and the inability to communicate, required occasional restraint by staff. The
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Derby School staff kept a daily journal of J.G.’s school day and his behaviors. This included
documenting each time a staff member would have to restrain J.G. These journals were shared with
J.G.’s parents along with “Rule 4500 letters,” which formally documented any use of restraint or
seclusion on J.G. School staff met with J.G.’s parents on a regular basis to discuss J.G.’s IEP,
specific incidents, and J.G.’s progress.

At the time, the District employed Defendant Kimberly Swett as a special education teacher
at the Derby Elementary School. During the 2016–17 school year, Defendant Swett was part of the
team who provided day-to-day care for J.G.

On December 13, 2016, the first reported incident between Swett and J.G occurred.
Defendant Swett reacted to J.G.’s behavior in what both Plaintiffs and the District have agreed was
an unduly forcible manner. On that date, J.G. was reaching for a CD player in a way that Swett
believed would do damage to the device. Swett roughly grabbed J.G.’s arm in such a way that
caused J.G. to fall to the ground.

Immediately following this incident, the District put Swett on paid administrative leave, and
began an investigation. The District eventually concluded that Swett’s actions were inappropriate
and took disciplinary action against her, including a formal reprimand and a report of the incident to
the Vermont Agency of Education. The report also made mention of an earlier, unsubstantiated,
incident from 2014 where Swett had been accused of similar conduct with another special needs
student but did not include any additional discipline for this earlier incident. The District found that
Swett was current on all of her necessary special education certifications and trainings, but the
District, as part of its discipline, mandated that Swett had to maintain these certifications and
continuing education credits to work with special needs students.

The District shared the results of the investigation with J.G.’s parents. Jessica Ortiz, J.G.’s
mother, made a request to remove Defendant Swett from working with J.G. At the time, Swett also
indicated to the District that she felt that she did not have the skills to work with J.G. The District
did not make any change to the position, and Defendant Swett remained one of J.G.’s caregivers.1

1 The reasons why Swett was not removed from the team providing care and support for J.G. remain a factual

dispute between the parties as does J.G.’s mother’s reaction to the District’s decision to keep Swett in her role as a
caregiver to J.G.
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On March 20, 2017, a second, and more serious, incident occurred. On that date, J.G. was
not complying with directions and had thrown a chair at the wall. As he was beginning to pick-up
another one, Defendant Swett took a 20-inch length of rope with two knots embedded into it that
she and other staff used to guide J.G. down the hallways and whipped J.G. with it. The strike left a
large welt on J.G.’s back.

Another special education teacher who was in the room during the entire incident immediate
sought out other staff members and formally reported the incident to the District’s administration.
The District put Swett on paid leave that day. Swett resigned later the same day from her position.
She has since been criminally charged with assault, to which she has pled no contest and received a
one-to-two year suspended sentence.

Since the March 20th incident, J.G. no longer enjoys going to school and has exhibited
increased behavioral issues. Plaintiff Ortiz has suffered and continues to suffer from on-going
emotional trauma arising from this incident.

Procedural Background

Plaintiffs filed the present action in October of 2019. Plaintiff’s initial claim named three
individual administrators of the District as Defendants for claims of gross negligence and negligent
infliction of emotional distress. These Court previously dismissed these individuals in May 2020, but
the two claims remain against the District.

Plaintiffs have also brought five claims against Swett. These include a claim of gross
negligence, assault, battery, negligent infliction of emotional distress, and intentional infliction of
emotional distress. As part of these claims, Plaintiffs also seek to hold the District vicariously liable
under 16 V.S.A. § 1756 and 24 V.S.A. §§ 901, 901a.

In addition to Plaintiffs’ claims, the District has brought crossclaims against Defendant
Swett seeking indemnification for her actions. For the purpose of the present motion, the only
relevant claims are the direct claims pending against the District and the claims for vicarious
liability.2

2 Defendant Swett has not participated in the present motion, and none of the filings affect either Plaintiffs’ direct

claims against Swett or the District’s crossclaims against her.
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Analysis

I. Summary Judgment Standard

“The court shall grant summary judgment if 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 court may enter summary judgment when, “after adequate time for discovery, a party
fails to make a showing sufficient to establish the existence of an element essential to [his or] her
case and upon which [he or] she has the burden of proof.” Gallipo v. City of Rutland, 2005 VT 83, ¶
13, 178 Vt. 244 (quotation marks omitted).

When determining whether there is a disputed issue of material fact, a court must afford the
party opposing summary judgment the benefit of all reasonable doubts and inferences. Carr v.
Peerless Insurance Co., 168 Vt. 465, 476 (1998). However, a non-moving party cannot rely on bare
allegations, unsupported generalities, or speculation to defeat a properly supported motion for
summary judgment. See V.R.C.P. 56(c), (e); Webb v. Leclair, 2007 VT 65, ¶ 14, 182 Vt. 559 (mem.).
“[C]onclusory allegations without facts to support them are insufficient to survive summary
judgment.” Robertson v. Mylan Laboratories, Inc., 2004 VT 15, ¶ 48, 176 Vt. 356. Thus, an opposing
party’s allegations must be supported by affidavits or other documentary materials which show
specific facts sufficient to justify submitting his or her claims to a factfinder. See Robertson, 2004 VT
15, ¶ 15; Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996).

II. Vicarious Liability

As part of their amended complaint Plaintiffs have attached the following claim to four of
the five claims lodged against Defendant Swett:

Pursuant to l6 V.S.A. 1756, 24 V.S.A. 901 & 901a, the school district and supervisory
union are liable for the actions of their employees and officers.

Pltfs. Amended Complaint at ¶¶ 39, 45, 49, and 59.

From the parties’ briefing, the Court understands the intent of this allegation is to make out
a claim of vicarious liability or respondeat superior claims against the District. While these statutes
can serve as a vehicle for respondeat superior claims, they are primarily indemnification provisions
that exist to shift certain claims away from individual officers to the Town. Civetti v. Turner, 2020 VT

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23, ¶¶ 18, 24; see also Coon v. Town of Springfield, 404 F.3d 683, 686–87 (2d Cir. 2005) (determining
that Section 901 does not create new rights of action).

These statutes work in the following manner: when a claim lies against a municipal or school
officer or employee, the statutes direct the parties and the court to have the claims made out in the
name of the municipality or school district instead of the individual officers.3 The municipality or
district effectively stands in the shoes of the employee and may only raise whatever defenses or
immunity claims that the individual could have raise. Civetti, 2020 VT 23, at ¶ 18. As the Court in
Civetti notes, these provisions are essentially defend-and-indemnify provisions in which the
government entity acts as the indemnifier to the individual employee or officer. Id.

This distinction is important because the provisions cited by the Plaintiffs are not intended
to create or establish vicarious liability, and as discussed below, these provisions have limitations on
what type of tortious behavior is covered. Given that each of the three statutes have slightly
different language and provisions, the Court will analyze each statute cited by Plaintiffs and what
claims may be allowed under each.

A. 24 V.S.A. § 901.

As a preliminary matter, Plaintiffs contend that the District is liable, in part, under 24 V.S.A.
§ 901. The plain language of 24 V.S.A. § 90, however, states that it only applies to “appointed or
elected . . . town school district officer.” 24 V.S.A. § 901(a); see also Civetti. 2020 VT 23, at ¶ 20.
Defendant Swett was neither an elected, nor an appointed. Swett was, up and until March 20, 2017,
an employee of the District. Therefore, she is beyond the provisions of 24 V.S.A. § 901, and no
vicarious liability or indemnification claims can arise in this case from the statute. Hudson v. Town of
East Montpelier, 161 Vt. 168, 177 (1993) (rejecting the application of Section 901 for claims involving
municipal employees). As such, the District is entitled to summary judgment on any claims against it
arising from 24 V.S.A. § 901.

3 The concepts of respondeat superior; indemnification, and immunity can often become entangled in their analysis

given the overlap and simultaneous function of each. For example, a claim against an individual officer for
negligence may spawn a claim of negligence that is brought against the municipality under Section 901’s
indemnification provisions, but it is only subject to the same qualified immunity defense that the officer could have
raised, and not the broad municipal immunity. At the same time, the same facts might also support a direct claim
against the municipality. See Civetti, 2020 VT 23, at ¶¶ 19–22 and ¶¶ 23–31.
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B. 24 V.S.A. § 901a.

While 24 V.S.A. § 901 is limited to officers, the subsequent section, 24 V.S.A. § 901a is
expressly applies to municipal employees. 24 V.S.A. § 901a(a); Civetti, 2020 VT 23, at ¶¶ 24, 25.. But
its application is not unlimited or applicable to all claims. The provisions of 901a state that “[w]hen
the act or omission of a municipal employee acting within the scope of employment is alleged to
have caused . . . injury to persons[] or death, the exclusive right of action shall lie against the
municipality that employed the employee at the time of the act or omission[.]” Under 26 V..S.A. §
901a(b). At least one Vermont Superior Court decision has found that this section applies to
employees of supervisory unions. Reilly v. Southwest Vermont Supervisory, No. 152-4-14 Bncv, 2016 WL
6662421, at *5 (Mar. 31, 2016) (Valente, J.). The Court in that case notes that 16 V.S.A. § 551
incorporates and applies the law of municipalities to school districts, and nothing in Section 901a
would exempt it from this broader application. This is consistent with the language of Civetti where
the Court found that the legislative history of Section 901a indicates that it was created with a broad
definition to cover employees and volunteers who are otherwise excluded from the indemnification
provisions of Section 901. Civetti, 2020 VT 23, at ¶ 25. For these reasons, the Court finds the
reasoning in Reilly to be persuasive and will apply it to the present case.

In applying Section 901a, the plain language of the statute requires the actions of the
employee must fall within the scope of her employment. 24 V.S.A. § 901a(b). In the context of the
present case, this raises the question of whether Swett’s actions, whipping J.G. were within the scope
of her employment. As a general proposition, assaulting a student would appear to fall outside of
the scope of Defendant Swett’s employment.

As the Vermont Supreme Court has explained, “[t]he conduct of an employee falls outside
the scope of employment if it is different in kind from that authorized, far beyond the authorized
time or space limits, or too little actuated by a purpose to serve the master.” Doe v. Forrest, 2004 VT
37, ¶ 15, 176 Vt. 476 (quotation omitted). Although Defendant Swett’s employment duties involved
some level of intervention and restraint as to J.G. and his behavioral problems, they cannot be
reasonably construed to include the authority to whip or otherwise abuse J.G. Nor can whipping
J.G. fairly be said to serve the District’s interests. As the Forrest court notes, when the actions of the
employee “victimized a person [they were] there to protect, exactly contrary to the interests of [their]
employer.” Doe, 2004 VT 37, ¶ 17.

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Plaintiffs appear to concede this point, as they do not address these issues in their
oppositions to the instant motion.

As noted above, the fact that 24 V.S.A. § 901a does not apply is not an entirely surprising
outcome. As an indemnification and defense statute that is modeled after state tort act, the intent of
the provision is inherently limited to the types of events that fall within the scope of employment. It
is not unreasonable for both the legislature and the school district to limit liability where the
underlying facts involve actions in which an employee has exceeded the scope or intent of their
position. Such positions are inherently beyond the employer’s control and intended scope of
liability.

C. 16 V.S.A. § 1756

As part of their vicarious liability claims, Plaintiffs also allege that the District is liable for
Defendant Swett’s tortious actions under 16 V.S.A. § 1756. Section 1756(a) provides as follows:

A . . . union school district and a supervisory union shall indemnify and save harmless to the
extent of the policy limits provided in subsection (b) of this section any person employed by
the school district or supervisory union . . . from financial loss and expense, including
reasonable legal fees and costs, if any, arising out of any claim, demand, suit, or judgment by
reason of alleged negligence or other act resulting in accidental injury to a person . . .,
within or outside the school building, provided that the indemnified person at the time of
the accident resulting in such injury, damage, or destruction was acting in the discharge of
his or her duties within the scope of his or her employment or under the direction of the
board of the school district or of the supervisory union.

16 V.S.A. § 1756(a) (emphasis added).

Section 1756 is another indemnification provision under Vermont school law. It applies to
accidental injury or accidental damage to property. Brown v. WNESU, 2006 WL 2548198, at * 15
(D.Vt. 2006) (Sessions, J.). Section 1756 does not establish a duty of care or even a standard for
vicarious liability. The statute is strictly a limited indemnification provision that applies if a school
district employee commits an accidental tort.

As noted above, the undisputed facts in this case show that the injury in this case did not
result from negligence or accident. Rather, the record shows that Defendant Swett intentionally
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whipped J.G. with a rope, and the resulting action gave rise to both criminal charges as well as
Plaintiffs’ current claims of intentional tort. There is no evidence that the underlying actions were
accidental or negligent.4 Section 1756 therefore does not support Plaintiffs’ claims, either on their
face. Brown, 2006 WL 2548198, at * 15.

Based on the fact that Plaintiffs’ have limited their vicarious liability claims to these three
indemnification statutes, and based on the fact that none of these three provisions apply to or cover
Defendant Swett’s criminal actions against J.G., the District’s motion for summary judgment is
Granted in regard to Plaintiffs’ vicarious liability claims under Count II (gross negligence); Count III
(assault); Count IV (battery); and Count VI (negligent infliction of emotional distress). These
Counts remain as to Defendant Swett, but they are dismissed against the District.

III. Negligent Supervision and NIED

With the dismissal of Plaintiffs’ vicarious liability claims, there remain two direct allegations
against the District Count I (gross negligence) and Count V (negligent infliction of emotional
distress). These claims allege that the Districts negligently supervised Defendant Swett and thereby
caused the incident at issue. The duty of care that school districts owe to their students is described
by statute as follows:

(a) Each school district and its employees owe its students a duty of ordinary care to prevent
the students from being exposed to unreasonable risk, from which it is foreseeable that
injury is likely to occur.
(b) School districts and their employees do not owe their students a duty of immediate
supervision at all times and under all circumstances.

16 V.S.A. § 834.

The Vermont Supreme Court has held that this statue does create liability for a school
district where the district does not have sufficient knowledge or notice to bring the incident in
question within the realm of the foreseeable. Edson v. Barre Supervisory Union No. 61, 2007 VT 62, ¶
10. This is consistent with the duty of care under the Vermont common law, which only imposes a
duty of care with regard to risks which are foreseeable. The Court acknowledges that the Vermont

4 As Plaintiffs admit, the claims for battery and assault include an element of intent.
As to the claims of gross
negligence, the element of culpability is elevated and magnified to a high degree removes it from ordinary
negligence. Kane v. Lamothe, 2007 VT 91, ¶ 12.
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Supreme Court has recently acknowledged that the Third Restatement of Torts removes some
element of foreseeability from the analysis of duty. See Blondin v. Milton Town School District, 2021 VT
2, ¶ 19 n. 6. However, the Court cannot conclude from this acknowledgment that the Vermont
Supreme Court is prepared to adopt this shift in the common law. Even if the Vermont Supreme
Court was prepared to do so, this Court is confronted with the issue of foreseeability, not from the
common law, but from statute. The Court finds that the salient question in defining the District’s
duty to J.G. must be framed as whether the incident was one which “a reasonably prudent person
could not have foreseen or anticipated under the circumstances.” Edson, 2007 VT 62, ¶ 10
(emphasis added).

A similar question also arises as to whether the District is the proximate cause of the
incident, or whether Defendant Swett’s actions constituted an efficient intervening cause. “An
efficient, intervening cause is a new and independent force that breaks the chain of causal
connection between the original wrong and the ultimate result.” Est. of Sumner v. Dep't of Soc. &
Rehab. Servs., 162 Vt. 628, 629 (1994). An intentional tort or crime is a superseding cause of harm
“unless the actor at the time of his negligent conduct realized or should have realized the likelihood
that such a situation might be created, and that a third person might avail himself of the opportunity
to commit such a tort or crime.” Restatement (Second) of Torts § 448 (1965).

In order to establish both duty and proximate cause, Plaintiffs must therefore establish that
the District should have been able to foresee the incident. To sustain their burden, Plaintiffs rely
upon the December 13, 2016 incident in which Defendant Swett used inappropriate force against
J.G., and its aftermath where Plaintiffs point to evidence that both J.G.’s mother and Swett sought
to remove Swett from the role as a caregiver to J.G. Plaintiffs argue that because Defendant Swett
had already used inappropriate force against J.G., a reasonably prudent person should have realized
that continuing to have Defendant Swett supervise J.G. created a situation where Defendant Swett
might continue and expand upon her history of in appropriate force against J.G., and that both
J.G.’s mother and Swett foresaw this possibility in their statements.

For the limited purpose of summary judgment, the Court is not in a position where it can
resolve this factual question and weighing the evidence without stepping into the realm of the fact
finder. The District’s argument, apart from its briefing urging the Court to abandon the requirement
of foreseeability, is effectively an argument of quality that goes to the strength of Plaintiffs’ claims.
The Court cannot, at this juncture, weigh the strength of Plaintiffs’ evidence or make a
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determination as a matter of law. For these reasons, Defendant’s motion for summary judgment is
therefore denied as to Counts I and V.

Order

Based on the Court’s analysis, Defendant’s motion for summary judgment is GRANTED as
to Plaintiff’s theories of vicarious liability and claims under 16 V.S.A. § 1756 and 24 V.S.A. §§ 901
and 901a. Defendants’ motion for summary judgment is DENIED as to Plaintiffs’ claims for
negligent supervision under Count I (gross negligence) and Count V (negligent infliction of
emotional distress).

Electronically signed on 5/9/2024 4:10 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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