Spring et al v. Allegany-Limestone Central School District et al

Filing 170

DECISION AND ORDER IT HEREBY IS ORDERED, that Defendant Lowry's Motion for Summary Judgment (Docket Nos. 142, 144) is GRANTED.FURTHER, that the Clerk of Court is DIRECTED to terminate Defendant Lowry from this case.FURT HER, that Plaintiffs' motion for an enlargement of time to identify Diane Lowry's legal representative or successor (Docket No. 168) is DENIED AS MOOT. SO ORDERED.Signed by William M. Skretny, United States District Judge on 5/17/2022. (JCM)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KERI SPRING, EUGENE SPRING,
JULIANNE SPRING, EUGENE SPRING and
KERI SPRING on behalf of GREGORY
SPRING, and KERI SPRING as the duly
appointed administrator of THE ESTATE OF
GREGORY SPRING,
Plaintiffs,

DECISION AND ORDER

v.

14-CV-476S

ALLEGANY-LIMESTONE CENTRAL
SCHOOL DISTRICT, THE BOARD OF
EDUCATION OF THE ALLEGANYLIMESTONE SCHOOL DISTRICT, KEVIN
STRAUB, Principal, DIANE LOWRY, Teacher
Assistant, JOHN DOE(S) and JANE DOE(S),
Defendants.

I. INTRODUCTION
In this action, family members and the administrator of the estate of Gregory Spring
seek damages from the Allegany-Limestone Central School District and School Board
and from several District employees for violating Gregory’s rights under the Americans
with Disabilities Act and the Rehabilitation Act. Plaintiffs also seek damages from
teacher’s aide Diane Lowry for the emotional distress caused by comments she posted
online after Gregory’s suicide. Before this Court is Defendant Lowry’s motion for summary
judgment, which this Court will grant for the following reasons. 1 (Docket No. 142, 144.)

The School District’s, School Board’s, and Kevin Straub’s motion for summary judgment (Docket
No. 143) will be resolved in a separate decision and order.
1

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II. BACKGROUND
Unless otherwise noted, the following facts are undisputed for purposes of the
motion for summary judgment. This Court takes the facts in the light most favorable to
Plaintiffs, the non-moving party. See Mitchell v. City of New York, 841 F.3d 72, 75 (2d Cir.
2016) (at summary judgment, a court “views the evidentiary record in the light most
favorable to ... the non-moving party”).
Gregory Spring was the son of Plaintiffs Keri and Eugene Spring, and the brother
of Plaintiff Julianne Spring. (Docket No. 142-1, ¶¶ 1-3.) Defendant Diane Lowry was a
teacher’s aide at the Allegany-Limestone Central School District, where Gregory was a
student. (Id., ¶ 6.) Lowry frequently worked in the same classroom as Gregory while he
was in middle school but had no contact with him after he completed eighth grade.
(Docket No. 142-12 at p. 2.)
Lowry testified that, when Gregory was in eighth grade, she saw him running down
the hallways with a group of boys, pushing people over. (Docket No. 142-11 at p. 38-39,
52.) She also testified that one day she asked the group of boys, including Gregory, not
to crowd her and the physically-limited student with whom she was working and Gregory
responded, “you need to shut the hell up and mind your own business.” (Id. at p. 43.)
Lowry left discipline for this incident to the teacher in charge. (Id. at p. 45.) She testified
that, a few days later, Gregory apologized to her for that incident. (Id. at p. 45.) Lowry
also testified that she had seen Gregory bully a student called Z.C. until he cried but she
did not provide a date or context for this incident. (Id. at p. 70.)
School disciplinary records indicate that Gregory was disciplined on November 12,
2010, and January 19, 2011, for shoving other students in the hallway. (Docket No. 1422

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15 at p. 1.) What appears to be a complete record of eight disciplinary incidents in
Gregory’s record does not contain a record of Gregory either bullying another student or
telling Lowry to shut up. (Docket No. 153-6 at pp. 3-6.)
Gregory committed suicide on June 17, 2013. (Docket No. 142-1, ¶ 9.) In the
aftermath of his suicide, an anonymous poster wrote the following on the online message
board of the funeral home: “Ha ha. He died. I hope he’s in hell.” (Id., ¶ 15.) A Channel 4
news article covered his suicide. The online comments section for this article contains
multiple posts about his suicide and about his mother Keri’s allegations that Gregory
committed suicide because he had been bullied and that the school district had done
nothing to protect him from bullying. 2 (Id., ¶ 13.)
Lowry engaged in this online conversation. In her first post, she wrote,
Oh how quick people are to judge and to forget that there are
always two sides to every story. As an employee of ALCS
District, I know first hand how difficult it is for schools to
manage students that are NOT properly disciplined at home.
This young man did not commit suicide because he was
bullied at school. I read the messages that he posted to his
FB (Facebook) page (which has been surprisingly removed)
and there was NOTHING said about bullying. There were,
however, NUMEROUS posts about his girlfriend and his
despondency over their breakup. Some of his posts sent a
chill up my spine and I remember feeling saddened that no
one saw these warning signs. In today’s world, our children,
and young adults, use technology to say things that should
never be said, post obscene pictures and videos, harass,
demean, vent, and yes, display warning signs of their
desperate need for help. It’s totally unfair and ridiculous to
place sole responsibility for horrific events such as this,
against any school district. Parents raising children in a
technology driven world like we live in today need to set strict
guidelines with their children’s phones and computers. I am
It is likely that this discussion occurred within several days of Gregory’s funeral. In messages to
a parent in the District, Lowry asked, “what parent would contact a news station the day after your son’s
funeral?” (Docket No. 142-14 at p. 4.) This suggests that the Channel 4 coverage occurred in the days after
the funeral and this discussion ensued shortly after.
2

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shocked at how many parents bring in copies of their
children’s FB pages filled with hateful and obscene comments
and expect the school to do something about it. When did it
become the school’s responsibility to monitor what a student
is posting and/or texting to others while at home? ALCS has
amazing teachers and staff – I know because I work with
them. I am telling you, there is another side to this story. As
an aide in the ALCS District, I was in class with Greg for three
years. I could, but choose not to, share what I witnessed (and
DID NOT witness) while in classes and walking the hallways
going from class to class. It saddens me that Greg chose to
end his life in this manner, but what saddens me even more
is his mother’s desire to place blame solely upon the school
district. How did Greg’s FB posts go unnoticed? Friends,
family members, teachers, employers, the government – all
have an influence on our lives and can give us excuses to
“blame” our circumstances on other people. We can not
change the past, however, and assigning blame will do
nothing to help us find solutions. Wouldn’t it be better if we
worked together to try and understand what happened? Are
we really interested in improving our future or are we more
concerned about who’s at fault?
(Docket No. 153-2 at p. 7.)
In a subsequent post, after other participants responded negatively to her initial
comment, Lowry wrote,
As an employee of the district, and someone who attended
many of Greg’s classes, I never once witnessed him being the
victim of bullying…EVER! Were you there? No, you were not.
So I believe I have every right to speak what I witnessed first
hand. I will tell you the very same thing I told another person
on this public forum. Let me just say this, I was told by a
student, “You need to shut up and mind your own business”
when I confronted HIM about HIS repeated and relentless
bullying of another student. That is what I witnessed. Maybe
you would be well served to adhere to your own advice about
remaining silent!
(Id. at p. 4.)
In response to participants’ criticism of her handling of the incident she described,
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Lowry wrote,
So why do you assume that I “scolded” Greg? You insult your
own intelligence by making blind assertions about how the
incident was handled. I did not have to “notify” the classroom
teacher because he heard the comment. And yes, it was
reported to the administration by the teacher. And to question
my credentials as an aide is insulting! And what I witnessed
was NOT backlash. It was the relentless targeting, and verbal
assault upon another student which eventually resulted in the
student having to be moved out of all the classes that he and
Greg shared. A wise person would not make assumptions
without first knowing all the facts!
(Id. at p. 10.)
Another commenter asked, “How do you explain, ‘Ha ha. He died. I hope he is in
hell’ then?” (Docket No. 153-2 at p. 11.) Lowry replied, “I cannot explain who would write
such a horrific statement! Obviously someone without much of a conscience.” (Id.)
The comments page included, in addition to Lowry’s contributions, participants
sharing their children’s experiences with bullying in the District, expressing anger at the
District’s handling of bullying, expressing skepticism of the District’s claims of
investigating bullying, discussing the national problem of bullying in schools, and
engaging in a side conversation about homeschooling. (See Docket No. 153-4 at pp. 132.)
When asked at her deposition whether she considered whether her comments
about Gregory would be hurtful to his family, Lowry stated, “no, I did not think about that.”
(Docket No. 153-9, ¶ 21; Docket No. 142-12 at p. 21.)
A parent in the District, whom Lowry only met through Facebook messenger,
messaged Lowry privately to express support after commenters reacted angrily to Lowry’s
postings. (Docket No. 142-14 at pp. 1-2.) Lowry expressed her gratitude for the support
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and stated that most teachers were afraid of Keri, that Keri would storm into the school
demanding to talk to teachers about Gregory’s grades, that Gregory was never held
accountable for his actions, and that Keri Spring was mentally ill. (Id. at p. 4.) Lowry wrote,
“what parent would contact a news station the day after your son’s funeral?” (Id.)
The parties dispute the truth of Lowry’s statements that Gregory told Lowry to “shut
the hell up and mind your own business” in response to her confronting him about bullying.
(Docket No. 142-1, ¶ 25; Docket No. 153-9, ¶ 25.) They also dispute whether Lowry, in
fact, “witnessed another student cry because of Gregory’s treatment of that student.”
(Docket No. 142-1, ¶ 28; Docket No. 153-9, ¶ 28.)

III. DISCUSSION
Plaintiffs claim that Lowry both negligently and intentionally caused them emotional
distress when she posted her comments about Gregory in this discussion forum. Lowry
moves for summary judgment on Plaintiffs’ claims.
In the time since Lowry filed her motion, she passed away. Plaintiffs filed a notice
of suggestion of death on December 16, 2021. (Docket No. 167.) On March 16, 2022,
Plaintiffs informed this Court that they were having difficulty identifying Lowry’s legal
representative or successor and requested either that their suggestion of death be
considered invalid or that this Court grant them additional time to identify Lowry’s
successor. (Docket No. 168.) This Court construes Plaintiffs’ filing as a motion for
additional time pursuant to Federal Rule of Civil Procedure 6 (b). See Perry v. Perry, No.
12-CV-5727 NGG MDG, 2014 WL 2993488, at *2 (E.D.N.Y. July 2, 2014) (“If there is an
inability or a significant difficulty in identifying the decedent's legal representative or
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successor, a motion could be brought under Federal Rule of Civil Procedure 6(b) to
enlarge the time in which to file the motion for substitution.”).
Because Lowry’s motion for summary judgment will be granted, however, Plaintiffs’
motion will be denied as moot.
A.

Summary Judgment
Summary judgment is appropriate 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.”
Fed. R. Civ. P. 56 (a). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences
drawn from the evidence must be "viewed in the light most favorable to the party opposing
the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609,
26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import
of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is any
evidence in the record from which a reasonable inference could be drawn in favor of the
opposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations omitted).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence
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showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Wright
v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is
properly supported by documents or other evidentiary materials, the party opposing
summary judgment may not merely rest on the allegations or denials of his pleading....”);
D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be
evidence from which the jury could reasonably find for the non-moving party.

See

Anderson, 477 U.S. at 252.
In the end, the function of the court is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249. “Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the court on summary judgment.”
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
B.

Negligent Infliction of Emotional Distress
Lowry argues that Plaintiffs’ cause of action for negligent infliction of emotional

distress must be dismissed because Plaintiffs did not experience the danger or proximity
to physical harm required for a claim under New York law. Plaintiffs do not respond to this
argument.
“When a party fails adequately to present arguments,” a court may properly
“consider those arguments abandoned,” Malik v. City of New York, 841 F. App'x 281, 284
(2d Cir. 2021) (quoting State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374
F.3d 158, 172 (2d Cir. 2004)). This is especially true “in the case of a counseled party”
where “a court may ... infer from a party's partial opposition that relevant claims or
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defenses that are not defended have been abandoned.” Malik, 841 F. App’x at 284
(quoting Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014)). Because Plaintiffs do
not present any arguments in defense of their claim for negligent infliction of emotional
distress, this Court finds that it has been abandoned.
Summary judgment is also warranted because Plaintiffs fail to raise an issue of
fact regarding this claim. A cause of action to recover damages for negligent infliction of
emotional distress must “be premised upon a breach of a duty owed directly to the plaintiff
which either unreasonably endangers a plaintiff's physical safety or causes the plaintiff to
fear for his or her own safety.” Waterbury v. New York City Ballet, Inc., No. 15036, 2022
WL 1269447, at *6 (N.Y. App. Div. Apr. 28, 2022); Daluise v. Sottile, 837 N.Y.S.2d 175,
178 (App. Div. 2007); Sheila C. v. Povich, 781 N.Y.S.2d 34 (App. Div. 2004).
Here, Plaintiffs do not allege that Lowry owed them a duty of care, nor that Lowry’s
conduct endangered their physical safety or caused them to fear for their own safety. See
Smith v. Vill. of Brockport, No. 19-CV-6404 CJS, 2022 WL 597465, at *24 (W.D.N.Y. Feb.
28, 2022) (dismissing NIED claim where the record did not indicate that plaintiff suffered
physical injury or threat of danger). On this basis, in addition to the basis of abandonment,
summary judgment will be granted as to Plaintiffs’ claim for negligent infliction of
emotional distress.
C.

Intentional Infliction of Emotional Distress
A cause of action for intentional infliction of emotional distress in New York has

four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a
substantial probability of causing, severe emotional distress; (iii) a causal connection
between the conduct and injury; and (iv) severe emotional distress.” Chanko, 49 N.E.3d
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at 1178–79. “‘Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community’” Id.
A defendant’s “knowledge of a plaintiff's susceptibility to emotional distress can,
under New York law, transform non-actionable acts into outrageous conduct.” Rich v. Fox
News Network, LLC, 939 F.3d 112, 123 (2d Cir. 2019) (citing Howell, 612 N.E.2d at 702,
and Restatement (Second) of Torts § 46 (comment f) (1965) (“[t]he extreme and
outrageous character of the conduct may arise from the actor's knowledge that the other
is peculiarly susceptible to emotional distress.”)). “Courts are reluctant to allow recovery
under the banner of intentional infliction of emotional distress absent a deliberate and
malicious campaign of harassment or intimidation.” Lewis Fam. Grp. Fund LP v. JS
Barkats PLLC, No. 16CV5255AJNJLC, 2021 WL 1203383, at *12 (S.D.N.Y. Mar. 31,
2021), report and recommendation adopted sub nom. Lewis Fam. Grp. Fund LP, et al.,
v. JS Barkats PLLC, et al., No. 16-CV-5255 (AJN), 2021 WL 4341080 (S.D.N.Y. Sept. 23,
2021).
The threshold for outrageousness is exceedingly difficult to meet. See, e.g.,
Chanko, 49 N.E.3d at 1178–79 (the broadcasting of a recording of a patient's last
moments of life without consent, where patient was not identified and face was blurred,
was not so extreme and outrageous as to satisfy New York’s “exceedingly high legal
standard”); Seltzer v. Bayer, 709 N.Y.S.2d 21, 23 (App. Div. 2000) (holding that the
defendant's alleged dumping of a pile of cement, tossing of lighted cigarettes, and drawing
of a swastika on his neighbor's house did not constitute conduct sufficiently outrageous
to survive a motion for summary judgment); Leibowitz v. Bank Leumi Tr. Co. of N.Y., 548
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N.Y.S.2d 513, 514 (App. Div. 1989) (affirming dismissal of IIED claim where plaintiff
alleged she was frequently the subject of derogatory, racist remarks).
The Free Speech Clause of the First Amendment—“Congress shall make no law
... abridging the freedom of speech”—can serve as a defense against claims for the
intentional infliction of emotional distress. Snyder v. Phelps, 562 U.S. 443, 451–53, 131
S. Ct. 1207, 1215–16, 179 L. Ed. 2d 172 (2011); see also Hustler Mag., Inc. v. Falwell,
485 U.S. 46, 50–51, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988). Speech is protected by the
First Amendment when it deals with matters of public concern, that is, when it can “be
fairly considered as relating to any matter of political, social, or other concern to the
community.” Snyder, 562 U.S. at 451–53 (citing Connick v. Myers, 461 U.S. 138, 146,
103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983)). The arguably “inappropriate or
controversial character of a statement is irrelevant to the question whether it deals with a
matter of public concern.” Rankin v. McPherson, 483 U.S. 378, 387, 107 S. Ct. 2891, 97
L. Ed. 2d 315 (1987).
This protection, however, is not absolute. “[W]hile false speech often must be
tolerated in order to foster the free exchange of ideas so integral to our constitutional
values, there remain limits upon the right to publish false statements that injure an
individual.” Holloway v. Am. Media, Inc., 947 F. Supp. 2d 1252, 1263 (N.D. Ala. 2013).
1. No reasonable jury could find that Lowry’s statements constitute
extreme and outrageous conduct under New York law.
Lowry argues that, even if Plaintiffs could prove the facts alleged herein, the
conduct at issue does not meet the high standard for outrageousness under New York
law. This Court agrees. A reasonable jury could not find Lowry’s comments “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
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of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.’”
Chanko, 49 N.E.3d at 1171.
To begin, Lowry did not initiate the comments concerning Gregory. Rather, it
appears that Keri raised the issue of bullying in the Channel 4 news story, putting the
question of whether Gregory was bullied squarely up for public debate. 3 Lowry
contributed—perhaps insensitively—to a topic that was already being discussed. Further,
she posted on the Channel 4 news site, directing her comments to fellow participants and
the public at large, not directly to Plaintiffs. Although it may have been foreseeable that
Plaintiffs might read the comments, Lowry did not address her comments directly toward
them and her thoughts were largely focused on the more general debate about the
handling of bullying in schools.
Nor did Lowry did engage in the kind of “deliberate and malicious campaign of
harassment or intimidation” that can make conduct outrageous. Hanly, 2007 WL 747806,
at *6. Rather, she made three discrete posts, only portions of which addressed Gregory’s
behavior. Her conduct is thus distinguishable from that in which courts find
outrageousness due to a campaign of harassment. See, e.g., Rich, 939 F.3d 112, 123
(2d Cir. 2019) (plaintiff parents plausibly alleged a “campaign of emotional torture” where
news outlet had a source befriend parents of murdered political staffer under false
pretenses, then broadcast multiple stories asserting that their son, murdered in a botched
robbery, was killed for engaging in political intrigue); Shannon v MTA Metro-N. R. R., 704
N.Y.S.2d 208 (2000) (allegations that defendants intentionally and maliciously engaged

Lowry commented in her text messages to the supportive parent, “What parent would contact a
news station the day after your son’s funeral?” (Docket No. 142-14 at p. 4.) This suggests that Keri initiated
the news coverage of Gregory’s suicide and her allegations of bullying.
3

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in a pattern of harassment, intimidation, humiliation and abuse, causing plaintiff unjustified
demotions, suspensions, lost pay, and psychological and emotional harm over a period
of years, were sufficient to support the cause of action for intentional infliction of emotional
distress). Finally, calling a child a bully, as part of a larger online discussion of bullying, is
simply not something that a jury could reasonably consider “atrocious” or “utterly
intolerable in a civilized society.” Chanko, 49 N.E.3d at 1171.
It is true that Lowry’s comments came at a time when Plaintiffs were freshly
grieving the loss of their son and brother. But given the high threshold for outrageous
conduct in New York, a reasonable jury could not find that her comments were sufficiently
extreme and outrageous under New York law.
Because Lowry is entitled to summary judgment on this basis, this Court will not
address the parties’ other arguments regarding Lowry’s state of mind in making the
comments, whether Lowry’s comments are protected by the First Amendment, and
whether Plaintiffs suffered the requisite severe emotional distress.

III. CONCLUSION
Because Plaintiffs do not assert the elements of a negligent infliction of emotional
distress claim and do not oppose Lowry’s motion as to this claim, this Court will grant
Lowry’s motion as to Plaintiffs’ claim for negligent infliction of emotional distress. Further,
because a reasonable jury could not find that Lowry’s comments were extreme and
outrageous under New York law, Lowry’s motion for summary judgment on Plaintiffs’
intentional infliction of emotional distress claim will also be granted.

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IV. ORDERS
IT HEREBY IS ORDERED, that Defendant Lowry’s Motion for Summary Judgment
(Docket Nos. 142, 144) is GRANTED.
FURTHER, that the Clerk of Court is DIRECTED to terminate Defendant Lowry
from this case.
FURTHER, that Plaintiffs’ motion for an enlargement of time to identify Diane
Lowry’s legal representative or successor (Docket No. 168) is DENIED AS MOOT.
SO ORDERED.
Dated:

May 17, 2022
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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