Nkemakolam et al v. St. John's Military School et al
Filing
192
MEMORANDUM AND ORDER denying 164 Defendant St. John's Military School's Motion for Partial Summary Judgment. Signed by District Judge John W. Lungstrum on 4/18/2013. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
YOLANDA NKEMAKOLAM,
as Parent and Next Friend of K.N., et al.,
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Plaintiffs,
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v.
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ST. JOHN’S MILITARY SCHOOL, et al.,
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Defendants.
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_______________________________________)
Case No. 12-2132-JWL
MEMORANDUM AND ORDER
The matter is presently before the Court on the motion by defendant St. John’s
Military School (“St. John’s”) for partial summary judgment (Doc. # 164). The Court
denies the motion.
1.
By this motion, St. John’s seeks summary judgment only on plaintiff
Michael Kelly’s1 claim for intentional failure to supervise (Count III of the second
amended complaint). St. John’s first argues that “intentional failure to supervise is not
a recognized cause of action in Kansas.” In its initial brief, the only argument by St.
John’s was that “[t]here is no jury instruction or case on point that acknowledges
intentional failure to supervise as a recognized cause of action.” St. John’s noted that
1
In plaintiffs’ various complaints, Mr. Kelly was referred to only as M.K. In their
briefs, however, both parties have identified Mr. Kelly by name, apparently because he
has now reached the age of majority.
plaintiffs have asserted in Count I a claim for negligent supervision, which it conceded
is a recognized cause of action. St. John’s did not suggest any reasons why Kansas
courts would not recognize a cause of action for intentional failure to supervise.
In response, Mr. Kelly cited the case of Dolquist v. Heartland Presbytery, 2004
WL 74318 (D. Kan. Jan. 15, 2004), in which Judge Vratil concluded that “Kansas courts
would recognize a claim for intentional failure to supervise.” See id. at *3. St. John’s
should have addressed the Dolquist case in its initial brief, as the most cursory research
would have revealed that authority, in light of its statement that there is no “case on point
that acknowledges intentional failure to supervise as a recognized cause of action.” St.
John’s argument in its reply brief that the Dolquist case may be distinguished does not
excuse that initial failure to address the case, which the Court certainly must consider.
At any rate, in its reply St. John’s noted that the authorities cited by Judge Vratil
in her order do not recognize such a cause of action under Kansas law and involve only
the negligent failure to supervise. Judge Vratil did not indicate otherwise in her order,
however; instead, she merely opined that Kansas courts would also recognize a cause of
action based on a more stringent standard of scienter. In its reply, St. John’s did not
suggest any reason why Kansas courts would not do so.
St. John’s also attempted to distinguish Dolquist, as well as Restatement (Second)
of Torts § 317, on which Judge Vratil relied, as involving the failure to supervise
employees or servants, while the present case involves a claim of a school’s failure to
supervise students. St. John’s did not suggest any reason, however, why such a
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distinction makes a difference. In the preceding Section 316, the Restatement imposes
a duty on parents to control their minor children to prevent them from intentionally
harming others, similar to the duty imposed on masters in Section 317. See Restatement
(Second) of Torts § 316. In their complaint, plaintiffs allege that the school’s duty to
control the behavior of its students arose from its acting in loco parentis with respect to
those students. Kansas courts have held that high schools do act in loco parentis with
respect to their students and therefore assume a duty to supervise them. See, e.g., Dunn
v. Unified Sch. Dist. No. 367, 30 Kan. App. 2d 215, 231-32 (2002). Courts in other
jurisdictions have applied Section 316 to parties acting in loco parentis. See, e.g.,
Gritzner v. Michael R., 611 N.W.2d 906, 921 (Wis. 2000); Wyatt v. McMullen, 350 So.
2d 1115, 1117 (Fla. Ct. App. 1977). St. John’s did not address this alleged source of its
duty to its students. The Court concludes nevertheless that there is no basis to treat the
situations covered in Sections 316 and 317 differently, and thus that there is no basis to
distinguish away Judge Vratil’s holding in Dolquist. See D.W. v. Bliss, 279 Kan. 726,
735 (2005) (there is no duty to control the conduct of another person absent a special
relationship of the type described in the Restatement, including Sections 316 and 317).
Neither party has made any argument concerning whether Judge Vratil was
correct in her conclusion that Kansas courts would recognize a cause of action for
intentional failure to supervise. In the absence of any such argument, the Court sees no
reason at this stage not to follow Judge Vratil’s holding that Kansas courts would
recognize such a claim. Indeed, the Court cannot see any reason why the State of
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Kansas, having recognized a failure-to-supervise claim under the less stringent
negligence standard, would not also allow a plaintiff to try to prove that the defendant’s
conduct also met a more stringent standard of scienter. Accordingly, the Court rejects
this argument by St. John’s.
2.
St. John’s also seeks summary judgment on the merits of Mr. Kelly’s claim
in Count III for intentional failure to supervise. St. John’s cites Mr. Kelly’s admission
in his deposition that one alleged incident of abuse—his being bound and gagged by
other students—occurred with his consent. Despite this evidence, however, St. John’s
has utterly failed to carry its initial summary judgment burden of demonstrating an
absence of a genuine issue of material fact with respect to this claim. See Thom v.
Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). In the complaint, Mr. Kelly alleges not only the
binding-and-gagging incident, but also alleges other specific incidents of abuse and his
abuse generally. In light of those allegations, the fact that Mr. Kelly may be unable to
prove one such specific allegation obviously does not mean or even suggest the absence
of any evidence to support the claim.2 Moreover, even if St. John’s could be said to have
2
The Court does not interpret the motion by St. John’s as seeking only summary
judgment on Count III to the extent it is based on that one allegation of abuse. By its
motion, St. John’s has clearly sought summary judgment with respect to Count III
generally as asserted by Mr. Kelly. Moreover, in response to Mr. Kelly’s facts
concerning other incidents of abuse, St. John’s did not state that its motion was limited
only to one basis for Count III; rather, St. John’s argued that such facts were irrelevant
in the absence of evidence of knowledge of the incident by St. John’s. (Such evidence
(continued...)
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carried its initial burden on summary judgment, Mr. Kelly has provided admissible
evidence that he suffered other incidents of abuse, which evidence would preclude
summary judgment on this claim. Accordingly, the motion by St. John’s for summary
judgment is denied.
3.
Lastly, the Court notes the separate motion filed by St. John’s in which it
asserts that plaintiffs have violated the protective order in this case, principally by
including various matters in their response to this summary judgment motion. Although
that motion will be ruled in due course by the Magistrate Judge, the Court is compelled
to comment on two aspects of that motion.
First, St. John’s argues that plaintiffs unnecessarily stated facts unrelated to the
particular alleged instance of abuse on which St. John’s concentrated its motion. The
Court flatly rejects that argument. By filing its motion, St. John’s put the viability of
Count III at issue, and plaintiffs quite reasonably cited evidence to support its allegations
that Mr. Kelly suffered abuse on other occasions and that St. John’s had knowledge of
various misconduct by its students. St. John’s should have considered any such negative
ramifications when it filed its motion so improvidently.
The summary judgment motion’s utter lack of merit leads the Court to its second
2
(...continued)
was not necessary here to combat, by pointing out other incidents, the sole argument by
St. John’s that one alleged instance of abuse did not occur.) Finally, St. John’s did not
also seek summary judgment on Count I (negligent supervision) to the extent based on
the single allegation of abuse, which further suggests that the motion was directed to
Count III generally.
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comment. In its separate motion, St. John’s complains repeatedly about plaintiffs’
attempts to “grab media attention.” It appears to the Court, however, as plaintiffs have
suggested, that St. John’s filed its summary judgment motion primarily as a vehicle for
its own attempt to draw media attention to Mr. Kelly’s deposition testimony. The filing
of the summary judgment motion was accompanied by the issuance of a press release by
St. John’s trumpeting Mr. Kelly’s admission—a release in which, ironically, St. John’s
complained about the unnecessary incursion of attorney fees. Moreover, the summary
judgment motion was borderline sanctionable—as noted above, St. John’s did not bother
to address the other bases for Mr. Kelly’s claim, nor did it bother to address the principal
case addressing the viability of the cause of action.
No doubt St. John’s is frustrated by plaintiffs’ behavior in so prominently relying
on the allegation involving the photograph of Mr. Kelly, both in its earlier complaint and
in the media, which has apparently been proven false. The Court is certainly dismayed
by plaintiffs’ conduct in retrospect. That frustration certainly did not justify the filing
of the instant motion, however. Both parties are hereby cautioned that any unnecessary
litigation occasioned by future attempts to “grab” positive media attention will not be
tolerated and will be dealt with harshly, to include the imposition of sanctions when
appropriate.
IT IS THEREFORE ORDERED BY THE COURT THAT the motion by
defendant St. John’s Military School for partial summary judgment (Doc. # 164) is
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denied.
IT IS SO ORDERED.
Dated this 18th day of April, 2013, in Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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