Gomez et al v. The Heights School et al

Filing 43

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 8/28/2024. (kk5s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CARLOS AZNAREZ GOMEZ, et al.,
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Plaintiffs,
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v.

Civil Action No. 8:22-cv-03117-PX
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THE HEIGHTS, INC., et al.,
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Defendants.

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***
MEMORANDUM OPINION

Pending in this personal injury action is Defendant The Heights, Inc.’s (the “Heights”)
motion to dismiss the Second Amended Complaint. ECF No. 31. Previously, the Court ruled
that the First Amended Complaint failed to state a claim but gave Plaintiffs the opportunity to file
an amended complaint to cure the pleading deficiencies. ECF Nos. 24 & 25. Plaintiffs have
filed not one but two amendments to the Complaint. ECF Nos. 29 & 37. For the following
reasons, the claims still fail as a matter of law.
I.

Background1
The Heights is a private, independent, preparatory school for boys in third through

twelfth grade. ECF No. 37 ¶ 7. Plaintiffs are parents Maria Paz Gomez Serrano and Carlos
Aznarez Lumiber (the “Parents”) and their son, Carlos Aznarez Gomez (“Carlos”). Id. ¶¶ 4–6.
They are citizens and residents of Spain. Id.
Sometime prior to 2012, the Heights established the four-week El Redin Student
Exchange Program (the “El Redin Program” or “Program”) with Carlos’ school in Spain. ECF
No. 37 ¶¶ 11–12. The Heights assumed responsibility for the organization and execution of the

These facts are derived from the Second Amended Complaint and construed most favorably to Plaintiffs.
See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).
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El Redin Program, to include the selection of host families, making travel arrangements for the
student visitors, and obtaining necessary visas. Id. ¶¶ 13, 21, 24; see Ex. E, ECF No. 37 at 62.
In 2012, the Parents agreed that Carlos would participate in the El Redin Program. ECF
No. 37 ¶ 24. The Parents completed a student questionnaire and written permission form for
Carlos to travel. Id. ¶¶ 26–27; Exs. F & G, ECF No. 37 at 65–70. On April 4, 2012, three days
before Carlos was to fly to the United States, the Heights informed Plaintiffs that it arranged for
Carlos to stay with the Smart family, the volunteer hosts. ECF No. 37 ¶¶ 29–33, 36.
The Second Amended Complaint includes few documents from the El Redin Program but
cites liberally to documents not related to the Program. See ECF No. 37 at 19–73. Pertinent to a
2023 secondary school year-long exchange program, implemented eleven years after the El
Redin Program, the Heights describes finding a host family for visiting students an “important
task.” Id. ¶ 19; Ex. D, ECF No. 37 at 54. The Heights further proclaims that for the 2023
program, it spent considerable time searching for host families; that the school’s standards for
host families are “high”; and that it would not place “a visitor in a home where we would not
place our own sons.” Ex. D, ECF No. 37 at 54–55.
The Second Amended Complaint also incorporates federal regulations pertinent to the
“Department of State designated exchange visitor programs.” See Ex. C, ECF No. 37 at 42–52
(22 C.F.R. § 62.25). But again, no facts indicate the El Redin Program qualifies as such a
program, and the Plaintiffs essentially admit as much. ECF No. 37 ¶ 16 (“although perhaps not
directly applicable to the Exchange Program . . . [the regulations] nevertheless reflect best
practices.”). By contrast, for the El Redin Program, the Heights literature notes only that “host
families chosen by the school” will be disclosed “ahead of time” to parents, and that the host

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family will provide food, lodging, and transportation for the student visitor. Id. ¶¶ 24, 32; Ex. E,
ECF No. 37 at 62.
On or about April 7, 2012, then nine-year-old Carlos traveled to the United States to
participate in the El Redin Program. ECF No. 37 ¶ 37. While living with the Smart family,
Carlos slept in the same room as the Smart family’s youngest son. Id. ¶ 38. One day while
Carlos was alone in the bedroom, Defendant Theodore Smart, the Smart family’s father,
sodomized Carlos. Id. ¶¶ 39–43. Carlos suffered significant physical and psychological injuries
as a result. Id. ¶¶ 42, 44, 50. No representative from the Heights ever visited Carlos while he
was at the Smart residence, although it appears that Carlos attended the Heights school program
without incident and saw it to completion. Id. ¶¶ 47–48. Carlos did not report the sexual assault
to the Heights and returned to Spain in May 2012. Id. ¶¶ 46–48.
Eventually, the Parents learned that Smart had sexually assaulted Carlos. Carlos was
diagnosed with a host of psychological injuries as a result. See ECF No. 37 ¶ 50. Smart faced
criminal prosecution in 2019 for harming Carlos, but ultimately was acquitted of all charges. Id.
¶¶ 51–53. After the not-guilty verdict, the current Heights headmaster emailed the Parents to
inform them that “Carlos’ case has provoked a thorough review of the process by which we
select host families for our international programs, a review that has been very helpful to us and
that we hope will improve these programs.” Id. ¶ 54.
On December 2, 2022, Plaintiffs filed suit against Smart and the Heights. ECF No. 1. As
to the Heights, the Complaint alleged negligent selection, placement, training, and
supervision/monitoring of Smart (Count I); gross negligence (Count II); breach of implied-in-

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fact contract (Count III); and breach of fiduciary duty (Count IV). ECF No. 1-1.2 For the claims
sounding in negligence, Plaintiffs averred that the Heights assumed liability for Smart’s
assaultive conduct because Smart was an agent of the Heights and because the Heights had a
special duty of care as it stood in loco parentis to Carlos. Id. ¶¶ 9, 25, 26, 29, 31. The Complaint
also broadly averred that the Heights and the Parents had entered an implied-in-fact contract in
which the Heights agreed to ensure Carlos’ safety with his host family. Id. ¶ 41.
On March 7, 2023, the Heights moved to dismiss all claims against it. ECF No. 19. The
Court granted the motion, finding no facts made plausible a duty of care owed to Carlos or the
existence of a sufficiently definite contractual promise to keep Carlos safe at his host family’s
home. See ECF No. 24 at 5–6, 9 & n.3. The Court permitted Plaintiffs an opportunity to amend
the Complaint. ECF Nos. 24 & 25.
Plaintiffs timely amended the Complaint. ECF Nos. 29 & 29-1. The Heights, in turn,
renewed its motion to dismiss. ECF No. 31. Plaintiffs then filed a Second Amended Complaint
principally to include English translations for certain exhibits that they had filed solely in
Spanish. ECF No. 37.3 Because the first and second Amended Complaint are identical in all
material respects, the Court will grant the amendment and treat the motion to dismiss as it
pertains to the Second Amended Complaint.
II.

Standard of Review
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint.

Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The Court must “accept the
The Complaint also alleged common law claims of assault, battery, intentional infliction of emotional
distress, and loss of consortium against Smart. ECF No. 1-1 ¶¶ 48–59. Smart answered the Complaint on March 3,
2023. ECF No. 15.
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Plaintiffs did not seek leave of the Court to file the Second Amended Complaint as required. See Fed. R.
Civ. P. 15(a)(2). However, because the Second Amended Complaint is identical to the First Amended Complaint,
the Court treats it as the operative Complaint.
3

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factual allegations in the complaint as true and construe them in the light most favorable to the
nonmoving party.” Rockville Cars, LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018).
However, the “Federal Rules do not require courts to credit a complaint’s conclusory statements
without reference to its factual context.” Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009). Nor do
courts need to “accept as true a legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986); see Iqbal, 556 U.S. at 663 (“. . . the tenet that a court must
accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of
action’s elements, supported by mere conclusory statements.”). To survive a motion to dismiss, a
complaint’s factual allegations “must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court must be able to deduce
“more than the mere possibility of misconduct” and the facts of the complaint, accepted as true,
must demonstrate that the plaintiff is entitled to relief. Ruffin v. Lockheed Martin Corp., 126 F.
Supp. 3d 521, 526 (D. Md. 2015) (quoting Iqbal, 556 U.S. at 679), aff’d as modified, 659 F.
App’x 744 (4th Cir. 2016).
III.

Analysis
A.

Negligence Claims (Counts I, II, and IV)

The Heights, once again, argues that the Second Amended Complaint fails to make
plausible that it owed a duty of care directly or indirectly to Carlos. ECF No. 31-1 at 6–7, 11–
12. The Court agrees. For any claim sounding in negligence, the plaintiff must plausibly aver
the existence of a legal duty of care that the defendant owed the plaintiff, and that the breach of
such duty proximately caused the plaintiff harm. Jones v. Family Health Ctrs. of Baltimore, Inc.,
135 F. Supp. 3d 372, 381 (D. Md. 2015) (quoting Jones v. State, 425 Md. 1, 18 (2012)); 100 Inv.
Ltd. P’ship v. Columbia Town Ctr. Title Co., 430 Md. 197, 212–13 (2013). Where no such duty

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of care exists, then no negligence claim shall lie. Kennedy Krieger Inst., Inc. v. Partlow, 460
Md. 607, 633 (2018) (“Because ‘there can be no negligence where there is no duty that is due,’
an analysis as to negligence ‘usually begins with the question of whether a legally cognizable
duty exists.’” (internal markings omitted) (quoting Doe v. Pharmacia & Upjohn Co., 388 Md.
407, 414 (2005))); see also Heward v. Bd. of Educ. of Anne Arundel Cnty., No. 23-00195-ELH,
2023 WL 6381498, at *61 (D. Md. Sept. 29, 2023) (duty of care essential for breach of fiduciary
duty claim); Gandy v. Howard Cnty. Bd. of Educ., No. GLR-20-3436, 2021 WL 3911892, at *5
n.4 (D. Md. Sept. 1, 2021) (“the elements of a breach of fiduciary duty claim mirror the elements
of a negligence claim.”); Bailey v. City of Annapolis, 252 Md. App. 83, 98 (2019) (gross
negligence is “an intentional failure to perform a manifest duty in reckless disregard of the
consequences.”).
The Second Amended Complaint advances the same two theories of duty as before: that
the Heights owed a duty of care to Carlos (1) because Smart was an agent of the school, and (2)
because the Heights stood in loco parentis as to Carlos. See ECF No. 37 ¶¶ 23, 34–35, 55–56.
Still, neither theory is availing.
Beginning with whether Smart was an agent of the Heights, agency is “the fiduciary
relation which results from the manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent by the other so to act.” Green v.
H&R Block, Inc., 355 Md. 488, 503 (1999) (quoting Restatement (Second) of Agency § 1
(1958)). An agency relationship depends on “the parties’ intentions as manifested by their
agreements or actions.” Id. Pertinent considerations include: (1) the agent’s power to alter the
principal’s legal relations; (2) the agent’s duty to act primarily for the benefit of the principal;
and (3) the principal’s right to control the agent. Id.

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In the Second Amended Complaint, the only new fact of consequence is that the Heights
had selected volunteer host families who, in turn, agreed to provide visitor students with
accommodations, meals, and transportation. See ECF No. 37 ¶¶ 24, 29–31. But the Second
Amended Complaint is silent on any other details regarding what relationship, if any, existed
between the host families and the Heights. See id. Accordingly, no facts permit the plausible
inference that the Heights, as putative “principal,” controlled the terms or conditions under
which Smart fulfilled his role as host parent. See id. That the Parents “believed” the Heights
exerted some unspecified “authority” or “control” over Smart does not create an agency
relationship. See Green, 355 Md. at 503; Proctor v. Holden, 75 Md. App. 1, 20–21, cert. denied,
313 Md. 506 (1988).
Nor do any of the voluminous materials appended to the Second Amended Complaint
change the analysis. The details surrounding host families and student placements for the 2023
program bears no relationship to the 2012 El Redin Program. See Ex. B, ECF No. 37 at 54–57.
Likewise, regulations governing “State Department” exchange programs, without more, cannot
plausibly set any standards for how the Heights and host families worked together in 2012 for the
Program. See Ex. C, ECF No. 37 at 42–52. At bottom, therefore, the Second Amended
Complaint pleads no facts from which to infer that the Heights bore a duty of care under a
principal-agent theory.
Similarly, as to the second theory of duty, no facts establish that the Heights stood in
in loco parentis as to Carlos via his placement in the Smart household. Generally, a defendant
owes no duty to protect another from harm inflicted by a third person. Doe v. Bd. of Educ. of
Prince George’s Cnty., 888 F. Supp. 2d 659, 669 (D. Md. 2012). However, the duty may arise
where the plaintiff and defendant enjoy a special relationship that requires the defendant to

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“exercise reasonable care to protect a pupil from harm.” Gambrill v. Bd. of Educ. of Dorchester
Cnty., 481 Md. 274, 314–15 (2022) (quoting Eisel v. Bd. of Educ. of Montgomery Cnty., 324 Md.
376, 384 (1991)). A school assumes such duty most clearly when the parents “relinquish their
supervisory role over their children to teachers and administrators during school hours”; and in
that circumstance, the school is responsible for protecting the student from “foreseeable dangers,
whether those dangers arise from the careless acts or intentional transgressions of others.” In re
Gloria H., 410 Md. 562, 583 (2009) (quoting Frugis v. Bracigliano, 177 N.J. 250, 268 (2003));
see also Willey v. Bd. of Educ. of St. Mary’s Cnty., 557 F. Supp. 3d 645, 668 (D. Md. 2021).
Notably, liability extends to the school largely because the risk of injury from the third party is
“foreseeable” to the school. See In re Gloria H., 410 Md. at 583. Indeed, foreseeability remains
“the most important variable in the duty calculus.” Doe on behalf of Doe v. Small, 654 F. Supp.
3d 376, 403 (D.N.J. 2023). This is especially so where “the failure to exercise due care creates
risks of personal injury.” Pendleton v. State, 398 Md. 447, 462 (2007) (quoting Jacques v. First
Nat’l Bank of Maryland, 307 Md. 527, 535 (1986) (citations omitted)).
When viewing the Second Amended Complaint most favorably to Plaintiffs, no facts
make plausible that the risks presented to Carlos while he was placed with the Smart family were
foreseeable to the Heights. See ECF No. 37. First, no facts establish the nature of the
relationship between the Heights and the Smarts. The Smarts volunteered to host Carlos. See id.
¶ 31. Mr. Smart did not work for the school, nor do any facts suggest he was even part of the El
Redin Program at the school. See id. And even though the Heights knew that Carlos would be
in the Smarts’ care during after school hours, nothing raised any red flags for the Heights in
advance of the placement. See id.; In re Gloria H., 410 Md. at 583. Although the Second
Amended Complaint broadly alleges that the Heights failed to implement “best practices,” in

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selecting host families, it gives not one example of the Heights actually agreeing, and then
failing, to perform any such due diligence as part of the Program. See ECF No. 37 ¶ 49. That
Plaintiffs had learned the identity of Carlos’ host family only three days before the program
began, when other families learned two weeks in advance, bears little on whether the Heights
assumed the responsibility to investigate the Smarts’ suitability and then failed to honor that
responsibility. See id. ¶ 36.
At bottom, Plaintiffs ask the Court to speculate that Carlos was horribly injured because
the Heights failed to protect Carlos from Smart. But no facts make plausible that such risk was
foreseeable to the Heights such that it assumed a special duty of care to Carlos outside school
hours or off school grounds. Cf. Pendleton, 398 Md. at 476 (no special duty to protect teenage
ward from risk of sexual assault in foster home); Small, 654 Fl. Supp. 3d at 398 (complaint failed
to plead foreseeability because no facts suggested principal knew about teacher’s pattern of
sexual abuse outside school); see also H.B.H. v. State, 192 Wash. 2d 154, 176–77 (2018) (no
duty of care despite “special protective relationship” if “a reasonable person in defendant’s
position would [not] be aware of a ‘general field of danger’ posing a risk.”). Because no facts
make plausible that the Heights assumed any special duty to Carlos for his placement with the
Smarts, the negligence claims fail once again. The Heights’ motion is granted as to Counts I, II,
and IV.
B.

Implied Contract Claim (Count III)

Count III alleges that the Heights breached an implied-in-fact contract with the Parents
by reneging on its promise to keep Carlos safe. ECF No. 37 ¶¶ 65–66. The Heights renews its
argument that Plaintiffs fail to aver sufficient facts to establish an implied-in-fact contract. ECF
No. 31-1 at 9–11. The Court agrees. An implied-in-fact contract is “evidenced by the parties’

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‘conduct, rather than an explicit set of words.’” State Constr. Corp. v. Slone Assocs., Inc., 385 F.
Supp. 3d 449, 463 (D. Md. 2019) (quoting Mogavero v. Silverstein, 142 Md. App. 259, 275
(2002) (citations omitted)). As with written contracts, an implied-in-fact contract “requires
mutual assent (offer and acceptance), an agreement definite in its terms, and sufficient
consideration” to form. Id. at 464–65 (quoting CTI/DC, Inc. v. Selective Ins. Co. of Am., 392
F.3d 114, 123 (4th Cir. 2004)); see also Botts v. Johns Hopkins University, No. ELH-20-1561520,
2021 WL 1561520, at *10 (D. Md. Apr. 21, 2021) (collecting cases) (“[m]utual assent is an
integral component of every contract.”).
For an agreement to be sufficiently “definite,” the parties need to “express themselves in
such terms that it can be ascertained to a reasonable degree of certainty what they mean.”
Mogavero, 142 Md. App. at 271–72 (quoting Robinson v. Gardiner, 196 Md. 213, 217 (1950))
(holding that the nature and extent of the plaintiff’s duties in the contract were too vague despite
an oral agreement that the plaintiff would help defendant “with construction end of the project in
return for a fee of 5% of estimated construction contract [costs].”). A contract must “clearly
inform the parties to it of what they may be called upon by its terms to do, but also must be
sufficiently clear and definite in order that the courts . . . may be able to know the purpose and
intention of the parties.” Id. at 272 (emphasis omitted); see Dolan v. McQuaide, 215 Md. App.
24, 29–30, 36–37 (2013) (finding that plaintiff’s agreement to do “planning” for the business
could not bind defendant to an implied-in-fact contract that they would be equal partners in the
venture and share new profits equally).
Again, Plaintiffs fail to make plausible the existence of a sufficiently definite agreement
necessary to proceed. At best, the Second Amended Complaint makes plausible that the Heights
agreed to obtain the necessary visas, make travel arrangements, and select a host family who

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would provide food, shelter, and transportation for Carlos. See ECF No. 37 ¶ 24. But nothing
suggests that the Heights specifically agreed to any terms beyond that, particularly terms that
required the Heights to assume the obligation of keeping Carlos safe while he was with the Smart
family. See id. ¶ 65. The conclusory averment that the Heights agreed to “ensure the safety and
wellbeing” of Carlos, without more, is simply too vague and indefinite to be enforceable as an
implied-in-fact contract. See id.; Mogavero, 142 Md. App. at 271–72. Thus, the claim fails as a
matter of law.
IV.

Dismissal With or Without Prejudice
Plaintiffs have been given the opportunity to cure the pleading defects. See ECF Nos. 24

& 25. They have filed not one, but two amended Complaints. See ECF Nos. 29 & 37. The
Court has considered the sufficiency of the Second Amended Complaint, and yet the claims still
fail as a matter of law. Generally, the Court will dismiss with prejudice claims that remain
insufficient after multiple opportunities to amend. Plaintiffs, however, urge that the Court should
permit additional amendment because, absent discovery, they do not have access to documents or
other evidence as to what, if any, agreement Smart and the Heights entered, or any detail
regarding the Heights supervision of the Smarts as a host family. ECF No. 36-2 at 7–8.
The case against Smart will proceed. See ECF No. 15. And in connection with the case
against Smart, Plaintiffs may explore the terms of his service as a parent volunteer, to include
any oral or written agreement he entered with the Heights. Similarly, Plaintiffs may issue
subpoenas on the Heights to obtain any relevant documentary evidence in connection with this
case. It is conceivable, therefore, that after some discovery is taken in Smart’s case, Plaintiffs
could amend to include claims against the Heights. Thus, out of an abundance of caution, the
claims against the Heights will be dismissed without prejudice.

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The Court will issue a Scheduling Order that will provide a date for amendment of
pleadings within the discovery period. This deadline is intended to permit Plaintiffs one final
opportunity at amendment after they have explored the Heights’ purported oversight and
involvement with Smart. Plaintiffs are advised to handle discovery efficiently and proactively
because the Court will not entertain late motions to amend.
V.

Conclusion
For the foregoing reasons, the Court GRANTS the motion to dismiss, and dismisses all

claims against the Heights without prejudice. A separate Order follows.

August 28, 2024

/s/

Date

Paula Xinis
United States District Judge

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