Reilly v. Southwest Vermont Supervisory Union ( 2016 )

Joan Reilly v. Southwest Vermont Supervisory Union et al., No. 152-4-14 Bncv (Valente, J., April 1, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Bennington Unit Docket No. 152-4-14 Bncv
Joan Reilly,
Plaintiff
v.
Southwest Vermont Supervisory, DECISION ON MOTION
Bennington School District,
Kathy Buck,
Clayton Buck,
Laurie Connell,
Defendants
Opinion
This is a torts case involving a child on the autism spectrum who was allegedly mistreated by
school employees. This alleged mistreatment included comments certain defendants made to
and/or regarding the child and their use of restraints and seclusions in accordance with the
child’s behavior plan. Defendants have moved for summary judgment as to all counts on a
number of grounds, including immunity and failure to make out prima facie cases. For the
reasons stated below, Defendants’ motion for summary judgment is GRANTED as to all four of
Plaintiff’s counts.
Background
The following facts are undisputed for purposes of this ruling. N.R. is a minor child. His
mother, Joan Reilly has brought this case on his behalf. N.R. attended second grade at Molly
Stark Elementary School within Bennington School District (BSD) and Southwest Vermont
Supervisory Union (SVSU) for the 2011-2012 school year. Andrick Aff. ¶¶ 3-4. In the second
half of that school year, N.R.’s “problem behaviors” began increasing. J. Reilly Dep. 179:13-15,
261:6-15. These behaviors included yelling, teasing, threatening, invading classmates’ personal
spaces, and refusing to follow the rules. Andrick Aff. ¶ 4. Beginning in the summer of 2012,
N.R. worked with employees of SD Associates. Andrick Aff. ¶ 7. He transitioned to
Bennington Elementary School (BennEl) to attend third grade for the 2012-2013 school year.
On September 4, 2012, N.R. was assigned to a classroom in BennEl with other students for the
first day of school. J. Reilly Dep. 237:22-238:1. Ms. Reilly stated that she would not allow
employees of SD Associates to work with N.R. Andrick Aff. ¶ 8. “Throughout the week,
[N.R.’s] behavior increased in severity and intensity in aggressive behavior.” Id. On September
10, 2012, Ms. Reilly requested to observe N.R. in his classroom. Id. ¶ 9. That morning, N.R.
knocked over chairs and a desk. Id. He kicked, hit, spat, screamed and pulled on the SD
Associates employee’s hair while Ms. Reilly stood watching. Id. ¶¶ 9-10. Eventually, Ms.
Reilly took N.R. home. Id. ¶ 11.
On October 1, 2012, N.R. began attending an individualized program located in a church. Id. ¶
13. The program would last approximately one hour each day and placed low academic demand
on N.R. J. Reilly Dep. 182:22-25. N.R. was generally well-behaved during this time. Id. 184:2-
5.
On October 25, 2012, an individual education plan (IEP) meeting was held between Ms. Reilly
and relevant special education personnel to discuss conditions in which N.R. would return to
BennEl. Andrick Aff. ¶ 14. Ms. Reilly attended the meeting, but she disputes receiving proper
notice that it was going to be an IEP meeting. See J. Reilly Dep. 185:18-20. At the meeting, it
was generally agreed that N.R. would return to BennEl for two hours a day with the possibility
that he could stay for more hours sometime in the future. Id. 186:3-7; Andrick Aff. ¶ 14.
Also on that date, Christine Morse, a consultant from the New England Center for Children with
Autism (NECC), helped the school select a room in BennEl for N.R. upon his return. Morse Aff.
¶ 8. Ms. Morse had been contacted by special education administrator Kathy Buck
Sometime in November or December, Kathy Buck hired her son Clayton Buck to work with
N.R. as a paraeducator. Clayton Buck Dep. 4:15-16, 6:7-10.1
On November 5, 2012, Ms. Reilly decided that N.R. was going to remain at BennEl for the entire
school day. J. Reilly Dep. 190:25-191:5, 194:5-9. On November 13, 2012, a meeting was held
in which a behavior plan was implemented as part of his IEP. Id. 202:9-13. Under the
“Accommodations” section the plan stated, “For safety and socia[l] reasons, N.R.’s time in the
general education setting should be determined by his behavior.” J. Reilly Dep., Def.’s Ex. F, at
1. The plan then explained what actions employees should take based on N.R.’s behavior. For
instance, if he had “an aggression” there was a specific 8-step de-escalation procedure. Id. at 2-
3.2 “Aggressive behavior” was also defined in the plan. Id. at 1.
On November 15, 2012, Christine Morse spent five hours with N.R. and the school staff,
instructing the staff on how to implement the behavior plan. Morse Aff. ¶ 9. During this visit,
Ms. Morse and a school district employee decided to try a monitored seclusion technique. Id. ¶
15. Ms. Morse’s reason for resorting to this technique was that it appeared to her that N.R.
1
In his deposition, Mr. Buck agreed that he was hired on December 13, 2012. However, Ms.
Morse’s affidavit states that on November 15, 2012, she spent five hours with N.R. and various
staff members, including Mr. Buck. The court does not believe this discrepancy to be material.
2
The procedure does not specifically mention the use of either seclusions or restraints.
However, it is Ms. Reilly’s understanding that both Clayton Buck and Laurie Connell utilized
seclusions when the circumstances called for it as part of the behavior plan and that they did not
come up with the technique on their own. See J. Reilly Dep. Dep. 23:1-12.
2
preferred the consequences relating to his unsafe behavior over positive reinforcement options.
Id. ¶¶ 12-15.
Ms. Morse continued to have regular in-person visits in which she “observed staff’s
implementation of the behavior plan, provided feedback to staff, modeled implementation of the
behavior plan with [N.R.], reviewed behavior data, problem-solved with staff and answered any
questions that they had.” Morse Aff. ¶ 22; see also Connell Dep. 14:11-17.
After the employees started secluding N.R., he began intentionally urinating on the floor. Id. ¶
17. By December 2012, Ms. Reilly had come to a similar conclusion as Ms. Morse – that N.R.
was engaging in problem behavior in order to gain control of adults and to avoid doing tasks he
did not like. J. Reilly Dep. 254:18-22, 255:24-256:4.
After N.R. returned to BennEl from the individualized programming at the church, Ms. Reilly
began noticing that the first thing N.R. would say when he came home from school was,
“They’re putting me in that room. They’re being mean to me.” J. Reilly Dep. 11:23-13:3. She
interpreted the way he made these statements as indicating increased levels of anxiety. Id. 12:12.
However, N.R. never said what “mean” thing was being done to him. Id. 14:25-15:3. Ms. Reilly
assumed that the “mean” conduct was the use of seclusion and that the seclusions were the
“trigger” for his anxiety. Id. 15:8.
On January 28, 2013, Laurie Connell began working with N.R. Connell Dep. 8:18-9:1. She was
hired by SVSU in 2006 and was employed as an Intensive Needs Specialist. Id. 5:1-5; 21:9-10.
N.R. exhibited some behavior issues Ms. Connell had never seen before. Id. 10:1-2. She and
Mr. Buck would utilize seclusions when N.R. urinated on the floor or was being physically
aggressive, but never when he was being verbally aggressive. Id. 16:16-20. Physical aggression,
including N.R. raising a fist at them, also sometimes resulted in the use of restraints. Id. 106:19-
107:9. The restraint technique used was either a standing or sitting basket hold. See e.g., id.
104:10-20 (describing how a standing basket hold would be performed on N.R.). Ms. Connell
had received yearly training on how to de-escalate situations, including how to properly utilize
restraints. Id. 103:12-19. There is no evidence indicating that the restraints or seclusions
violated Vermont Agency of Education Rule 4500, which governs the use of such techniques.3
During the time N.R. attended BennEl, Ms. Reilly observed him returning home with bruises. J.
Reilly Dep. 9:20-11:4. She took N.R. to a doctor one or two times and told the BennEl principal
that she wanted the bruising to stop. Id. 29:8-30:11. She also noticed that he would sometimes
3
Plaintiff disagrees with this assessment, citing to pages 205 and 206 of Dr. Joseph Hasazi’s
deposition. However, Dr. Hasazi’s statements in these pages do not support Plaintiff’s claim. In
response to an objected-to question asking whether the use of between three and fifteen restraints
a day is excessive, Dr. Hasazi said, “yes.” Hasazi Dep. 205:21-25. There is no indication that
the court can find in Dr. Hasazi’s deposition or elsewhere suggesting that N.R. was actually
subjected to that many restraints per day. Moreover, even if that were a reasonable inference,
nothing in the cited-to pages mentions Rule 4500 or what would constitute a violation thereof.
Dr. Hasazi expressly stated he had no opinion as to whether Rule 4500 was violated and that the
rule was irrelevant to his expert opinion. Id. 91:1-21.
3
come home with scratches, but he never told his mother how he received the scratches and she
never asked him how he was injured. Id. 142:8-14.
On February 13, 2013, Ms. Reilly surreptitiously placed a recording device inside a stuffed
animal and attached the toy to N.R.’s backpack. Id. 91:14-16, 104:5-9. Throughout the day, the
device recorded N.R. and various employees’ voices. The parties agree that at least five
comments were made directly to N.R., including a statement that they were going to call the
police, a statement that he would have to stay in the room based on his behavior, a statement that
he was going to have to clean up “all that other stuff,” a statement telling him to go back to a
corner of the room, a statement “you’re not getting out of here,” and a question asking him if he
actually felt a certain way or if he was being told that he was feeling that way. Many, but not
necessarily all, of these comments were made by Mr. Buck or Ms. Connell. Other statements,
including a reference to N.R. as a “[dumba--] with autism,” were allegedly made by the
employees in a hallway outside N.R.’s room.4 There is no direct evidence that N.R. actually
heard any of those comments.
In the fall of 2013, N.R. attended a new elementary school, participating in a NECC program that
had been created that summer. J. Reilly Dep. 44:15-19. According to Ms. Reilly: N.R. has not
been held back academically due to the events at BennEl; his current aggressive behaviors are
not attributable to those events; he is not restricted in participating in activities as a result of
those events; and she did not suffer any monetary expenses as a result of these events. Id. 72:3-
8, 72:17-20, 73:25-74:4, 80:15-18. She did not believe his behavior at BennEl, at least in
December 2012, was due to anxiety. Id. 255:24-256:4. Her expert has compiled the number of
instances involving problem behaviors between December and February 2013 and compared
them to similar behavior over a one-month time period for the 2013-2014 school year based on
school records. For instance, according to school records N.R. engaged in property destruction
approximately 133 times between December 3, 2013 and February 1, 2013. Dr. Hasazi
calculated that N.R. engaged in property destructing on average 1.5 times a day between October
28, 2013, and November 22, 2013. Hazasi Report at 4.
Regarding Mr. Buck and Ms. Connell’s use of restraints, Ms. Reilly does not believe that they
intended to harm N.R. J. Reilly Dep. 18:22-19:2. She believes N.R. was bruised as a result of
the restraints. Id. 11:7. She also stated that the only emotional or mental harm resulting from the
use of the restraints was that the problem behaviors reported at BennEl got worse. Id. 11:8-22.
She believes that it was wrong for Kathy Buck to hire her son because Ms. Buck was aware of
the ongoing problems with N.R. and Mr. Buck had inadequate autism-specific training or
experience. Id. 48:13-24, 49:25-51:20.
4
For this particular comment, Plaintiff claims Defendants admitted that this was said. She cites
to Defendants’ response to Plaintiff’s Request for Admission #8. However, in that response,
Defendants replied, “Denied.” Apparently, Defendants admit that Mr. Buck did refer to N.R. as
a “[dumba--].” See Defs.’s Reply Mem. in Support of Defs.’s Mot. for Summ. J. at 22. Another
statement Ms. Connell admits to saying is telling Mr. Buck that she knew a child could go
multiple days without eating or drinking before it would affect his body in response to N.R.
pouring milk on the floor. Connell Dep. 72:14-76:1.
4
Ultimately, it is Ms. Reilly’s opinion that the behavior plan “wasn’t a good plan.” Id. 23:19.
She believes it was wrong for BennEl to stick with the plan despite N.R.’s behavior not
improving. Id. 34:21-25.
Summary Judgment Standard
A party is entitled to summary judgment where “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.”
Vermont Rule of Civil Procedure 56(a). A fact is material only if it might affect the outcome of
the case. O’Brien v. Synnott, 2013 VT 33, ¶ 9, 193 Vt. 546. Where the nonmoving party bears
the burden of persuasion at trial, the moving party satisfies its burden of production at summary
judgment by showing the court that there is an absence of evidence in the record to support the
nonmoving party’s case. Clayton v. Unsworth, 2010 VT 84, ¶ 16, 188 Vt. 432.
“The burden then shifts to the nonmoving party to persuade the court that there is a triable issue
of fact.” Id. The nonmoving party will receive the benefit of all reasonable doubts and
inferences, but only if the allegations made in their opposition to the summary judgment motion
are supported by affidavits or other evidentiary material. Robertson v. Mylan Labs., Inc., 2004
VT 15, ¶ 15, 176 Vt. 356. On the other hand, if the nonmoving party fails to support an assertion
with a citation to the record, the court may consider the fact undisputed for purposes of the
motion. Hemond v. Frontier Commc’ns of Am., Inc., 2015 VT 66 (citing V.R.C.P. 56(c), (e)(2)).
Analysis
Plaintiff has brought four counts against three individual defendants, the school district, and the
supervisory union. These counts are:
I. Negligent infliction of emotional distress (against Clayton Buck and Laurie
Connell);
II. Negligent hiring and supervision (against SVSU, BSD, and Kathy Buck);
III. Intentional Infliction of Emotional Distress (against Clayton Buck and Laurie
Connell); and
IV. “Respondeat Superior” incorporating the three previous counts (against SVSU,
BSD, and Kathy Buck).
All defendants have moved for summary judgment for the following reasons: there is no
admissible evidence of physical or mental injury to N.R.; schools and their employees may not
be held liable for “educational malpractice;” and Plaintiff lacks sufficient evidence to support
prima facie cases for each of her claims.
The individual defendants also claim that they are entitled to summary judgment because they
are immune from suit under 24 V.S.A. § 901a and the doctrine of qualified immunity. As an
5
alternative, Mr. Buck and Ms. Connell argue that they should be entitled to summary judgment
for conduct that occurred outside the time periods that they each worked with N.R.
For the reasons stated below, the court grants summary judgment on the basis of § 901a and the
lack of sufficient evidence to support prima facie cases as to each of the counts.
I. Section 901a immunity for individual defendants
Defendants Kathy Buck, Clayton Buck, and Laurie Connell have moved for summary judgment
as to Count I (negligent infliction of emotional distress), Count II (negligent hiring and
supervision), Count III (intentional infliction of emotional distress), and Count IV (incorporating
counts I-III based on respondeat superior), asserting that 24 V.S.A. § 901a(b) immunizes them
from suit. Plaintiff responds that supervisory union employees are not municipal employees
under § 901a because the Legislature requires supervisory unions to indemnify their employees
under 16 V.S.A. § 1756. Because § 901a only protects municipal employees, Plaintiff argues
that the statute does not protect Ms. Buck, Mr. Buck, or Ms. Connell. For the following reasons,
the court concludes that supervisory union employees are entitled to immunity under § 901a.
24 V.S.A. § 901a(b) states:
When the act or omission of a municipal employee acting within the scope of employment
is alleged to have caused … injury to persons, … the exclusive right of action shall lie
against the municipality that employed the employee at the time of the act or omission; and
no such action may be maintained against the municipal employee or the estate of the
municipal employee.
A “municipal employee” is defined in § 901a(a) and includes any person employed for a wage or
salary by a municipality. Section 901a(a) does not say whether a school district or supervisory
union are “municipalities.” However, “[u]nless otherwise specifically provided in statute with
respect to a class of school district or in a municipal charter, … the laws pertaining to municipal
corporations … shall apply to all school districts.” 16 V.S.A. § 551. Section 901a does not
specifically state that a school district or supervisory union should be treated differently from
other municipalities. Therefore, the court concludes that school districts and supervisory unions
are municipalities under § 901a. See also Farmer v. Poultney Sch. Dist., 113 Vt. 147, 149
(1943). Thus, under both statute and caselaw, Kathy Buck, Clayton Buck, and Laurie Connell
may seek protection under § 901a(b) so long as they were acting within the scope of their
employment.
A. Applicability of § 901a to Mr. Buck and Ms. Connell in Count I
Plaintiff in Count I of her Complaint alleges that Clayton Buck and Laurie Connell are liable for
injuries arising from the negligent infliction of emotional distress (NIED). There are two
potential factual bases for this Count: the employees’ alleged comments made on February 13,
2013, and the use of restraints and seclusions as part of N.R.’s behavior plan. Paragraphs 14 and
15 of the Complaint and Plaintiff’s response to Defendants’ motion for summary judgment
indicate that both, not one or the other, are the factual bases for Count I.
6
While § 901a(b) immunizes municipal employees acting within the scope of their employment, §
901a(e) permits suits against individual employees who acted willfully, intentionally, or outside
the scope of their authority. Because the question of whether a person was acting within the
scope of employment is a fact-intensive inquiry, it is generally a question for the finder of fact.
Brueckner v. Norwich Univ., 169 Vt. 118, 123 (1999). Here, however, there is no genuine
dispute as to whether Mr. Buck and Ms. Connell were acting within the scope of their
employment by utilizing seclusions and restraints in accordance with the behavior plan. They
were acting within the scope of their employment. Plaintiff’s contention is not that they acted
outside the scope of the behavior plan, but that the behavior plan itself “wasn’t a good plan” and
that it should have been changed once they realized N.R.’s behavior was not improving. J.
Reilly Dep. 23:19, 34:21-25. Thus, because there is no genuine dispute that Mr. Buck and Ms.
Connell were acting within the scope of their employment, summary judgment is proper
regarding Count I to the extent that it is premised on the use of restraints and seclusions.
However, while some of the alleged comments may have been within the scope of Mr. Buck and
Ms. Connell’s authority (e.g. telling N.R. he would be secluded based on his behavior), some
were not (e.g. referring to N.R. as a “[dumba--]”). As to comments that were within the scope of
employment, the court does grant summary judgment on the basis of § 901a. As to comments
that were potentially outside the scope of employment, these are addressed below.5
B. Applicability of § 901a to Ms. Buck in Count II
Plaintiff in Count II of her Complaint alleges that Kathy Buck, SVSU, and BSD negligently
failed to hire competent people to work with N.R. and that Mr. Buck and Ms. Connell were
negligently supervised. Kathy Buck has moved for summary judgment pursuant to § 901a(b).
Kathy Buck’s supervision of Clayton Buck and Laurie Connell was within the scope of her
employment. However, Plaintiff has met her burden to show that there is a genuine dispute as to
whether Ms. Buck exceeded the scope of her authority by hiring her son, Clayton Buck. Plaintiff
cites SVSU and BSD’s Policy # 4035, attached to her response as Exhibit L. The policy states:
“the Board will not condone the hiring of anyone in a position where the person hired will be
supervised or evaluated by a family member.” Defendants argue that the policy does not prohibit
the hiring of a family member. It is true that the policy uses the words “will not condone” rather
than “prohibits,” which could indicate Kathy Buck was acting within her authority when she
hired Mr. Buck. However, the court concludes that there is a genuine dispute as to this material
fact such that summary judgment as to this specific issue is not proper. Conversely, there is no
evidence that Ms. Buck similarly acted outside the scope of her authority by assigning Ms.
Connell to work with N.R. Thus, the court grants summary judgment in favor of Kathy Buck as
to Count II on the basis of § 901a(b) immunity regarding her supervision of both employees and
her hiring of Laurie Connell, but not on her hiring of Clayton Buck.
5
The court has not gone through to determine which comments are within the scope of
employment and which are not, as all comments fail to meet the prima facie elements of the case
as explained in Section II(A) of this opinion.
7
C. Applicability of § 901a to Mr. Buck and Ms. Connell in Count III
Next, Plaintiff in Count III alleges that Clayton Buck and Laurie Connell acted intentionally or
with reckless disregard causing extreme emotional distress to N.R. As stated below regarding
this IIED claim, it appears that the factual basis underlying this claim is the employees’
comments, not their use of seclusions and restraints. Without examining each comment, the
court need not decide whether individual comments were made outside the scope of employment
because Plaintiff has failed to show that there is a genuine dispute as to whether she can meet all
the elements of the IIED prima facie case as discussed below.
D. Applicability of § 901a to Ms. Buck in Count IV
Plaintiff asserts the doctrine of respondeat superior in Count IV to allege the vicarious liability of
Kathy Buck, SVSU, and BSD on each of the first three counts. Only Ms. Buck claims that §
901a protects her. The very definition of respondeat superior requires that the employee act
within the scope of employment. See Buxton v. Springfield Lodge No. 679, 2014 VT 52, ¶ 13,
196 Vt. 486, 493 (quoting Black’s Law Dictionary). Therefore, in order for Ms. Buck to be
found vicariously liable, Mr. Buck and Ms. Connell had to have been acting within the scope of
their employment. Thus, § 901a(b) must apply to Ms. Buck here. Accordingly, summary
judgment as to Count IV regarding Ms. Buck is granted.
II. No genuine dispute as to Plaintiff’s failure to make out prima facie cases
Next, Defendants allege that they are entitled to summary judgment for the remaining counts for
failing to state prima facie cases.
These remaining claims, not granted summary judgment above are:
A. Negligent Infliction of Emotional Distress against Clayton Buck and Laurie
Connell for allegedly making comments to and/or regarding N.R. (Count I);
B. Negligent hiring against Kathy Buck for the hiring of Mr. Buck; and against BSD
and SVSU for the negligent hiring and supervision of Mr. Buck and Ms. Connell
(Count II);
C. Intentional Infliction of Emotional Distress against Mr. Buck and Ms. Connell for
making comments to and/or regarding N.R. (Count III); and
D. Vicarious liability against BSD and SVSU regarding the theories alleged in the
first three counts (Count IV).
For the following reasons, the court finds that Plaintiff has failed to support all the essential
elements of the alleged counts with facts in the record. See Hemond v. Frontier Commc’ns of
Am., Inc., 2015 VT 66 (citing V.R.C.P. 56(c), (e)(2)).
8
A. Count I (NIED) prima facie case
Regarding Count I, against Clayton Buck and Laurie Connell for allegedly making comments to
and/or regarding N.R., Defendants have satisfied their burden of production by showing that
Plaintiff does not have sufficient facts that create genuine issues as to material facts regarding all
the essential elements of a NIED claim. Plaintiff has not demonstrated that there are genuine
issues by pointing to specific material facts.
“To establish a claim for negligent infliction of emotional distress, a plaintiff must make a
threshold showing that he or someone close to him faced physical peril.” Brueckner v. Norwich
Univ., 169 Vt. 118, 125 (1999). The Vermont Supreme Court has not defined what it means to
“face physical peril.” In the broadest sense, it could mean to be physically present at the scene of
the injury-causing event, as opposed to hearing about the event at a later date or viewing it
contemporaneously on television. A better interpretation of this phrase is that a plaintiff must
show that he or she faced a risk of physical harm based on the definition of these words.
Webster’s dictionary defines “peril” as “[e]xposure to the risk of harm or loss” and “[t]o expose
to danger or the chance of injury.” Webster’s II New College Dictionary 838 (3d ed. 2005).
“Physical” is defined as “[o]f or relating to the body as distinguished from the mind.” Id. at 850.
While it might be theoretically possible for speech to expose a person to risk of bodily harm or
injury, Plaintiff has not met her burden to persuade the court that any of the comments allegedly
made by Mr. Buck or Ms. Connell could have exposed N.R. to risk of physical harm or injury.
Indeed, the only response to Defendants’ assertion that she has failed to meet all the NIED
elements was to point to the use of restraints.6 Therefore, it is within the court’s discretion to
consider this issue undisputed. See Hemond v. Frontier Commc’ns of Am., Inc., 2015 VT 66
(citing V.R.C.P. 56(c), (e)(2)). Thus, the court grants summary judgment in favor of Clayton
Buck and Laurie Connell on the remaining issue in Count I because Plaintiff has failed to show
that there is a genuine dispute that N.R. faced physical peril, the threshold requirement to
maintain a valid NIED claim.
B. Count II (negligent hiring and supervising) prima facie case
In her Complaint, Plaintiff alleges that Defendants Kathy Buck, SVSU, and BSD owed a direct
duty to N.R. to hire competent and qualified personnel and to appropriately supervise the
personnel working with N.R. in order to ensure that services were being provided to him in a
reasonable manner. Plaintiff further alleges that by breaching this duty, Defendants caused
bodily injuries and mental suffering. The remaining issues in this claim are whether SVSU and
BSD negligently failed to supervise Mr. Buck and Ms. Connell and negligently hired Ms.
Connell, and also whether Ms. Buck was negligent in hiring her son to work with N.R.
Defendants have met their burden of production for summary judgment by showing an absence
of facts supporting all the elements of this claim. Therefore, it is Plaintiff’s burden to persuade
the court that there are facts supporting each element.
6
As stated in section II(A) above, summary judgment was granted as to the use of restraints and
seclusions based on § 901a immunity and the only remaining issue in Count I was based on the
comments.
9
“[T]he tort of negligent supervision must include as an element an underlying tort or wrongful
act committed by the employee. A wrongful act may well be a tort, but not necessarily.”
Haverly v. Kaytec, Inc., 169 Vt. 350, 357 (1990). As with any negligence claim, a plaintiff must
meet four basic elements: “a legal duty owed by defendant to plaintiff, a breach of that duty,
actual injury to the plaintiff, and a causal link between the breach and the injury.” Ainsworth v.
Chandler, 2014 VT 107, ¶ 11, 197 Vt. 541 (quotations omitted). The duty owed here was “to
anticipate and to guard against the human traits of his employees which unless regulated are
likely to harm others.” Brueckner v. Norwich Univ., 169 Vt. 118, 127 (1999) (quoting
Restatement (Second) of Agency § 213 cmt. g (1958)).
Plaintiff has failed to cite facts indicating that Defendants breached their duty to anticipate and
guard against harmful traits of Mr. Buck and Ms. Connell.7 In Plaintiff’s response to this section
of Defendants’ motion, she begins by arguing Ms. Buck’s hiring of her son violated Policy
#4035. She then concludes by discussing the various employees’ subsequent employment
relationship with SVSU and BSD. There is no discussion with specific citations stating what
human traits needed to be guarded against. See Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 18.
Thus, because Plaintiff has failed to persuade the court with specific citations in the record that
there is a genuine dispute that SVSU and BSD’s supervision of Mr. Buck and Ms. Connell
breached their duty, the court considers this issue undisputed. See, Hemond v. Frontier
Commc’ns of Am., Inc., 2015 VT 66 (citing V.R.C.P. 56(c), (e)(2)). Defendants also show that
Mr. Buck and Ms. Connell were given training, which was not disputed by Plaintiff.
Accordingly, summary judgment regarding negligent supervision is proper because Plaintiff has
failed to persuade the court that there is a genuine dispute as to all the elements of this claim.
Next, Defendants have shown an absence of facts in the record indicating that Ms. Buck was
negligent in hiring her son. Plaintiff has the burden of showing there are sufficient facts to create
a genuine dispute as to the four negligence elements. Even if the court were to assume that the
relevant trait to be guarded against was Mr. Buck’s inexperience in working with children with
autism, Plaintiff has failed to show facts in the record indicating a genuine dispute as to whether
there was a breach.
Claiming Mr. Buck’s hiring violated Policy #4035 is not evidence that Defendants breached the
applicable duty here. Plaintiff is essentially making a negligence per se argument. However,
negligence per se is only available where the statute or rule is designed to protect against the type
of accident that allegedly occurred and only if the alleged victim is within the class of persons
the statute or rule is designed to protect. See Restatement (Third) of Torts: Phys. & Emot. Harm
§ 14 (2010). Here, Policy # 4035 states that it is designed to protect against an appearance of a
conflict of interest. There is no mention that the policy is designed to protect against bodily and
emotional harm caused by inexperienced employees. Plaintiff has failed to articulate with
specific citations to facts in the record how hiring Mr. Buck in violation of Policy #4035 violated
7
Defendants argue that there is no duty here because the claim is based on “educational
malpractice.” The court addresses this argument later in this opinion as it concerns Count IV
incorporating Count I. Because the court finds that Plaintiff failed to show facts regarding the
breach element here, the court does not address the educational malpractice argument.
10
a duty owed to N.R. Thus, the court finds that there is no genuine dispute as to this material fact
and that summary judgment is proper regarding the negligent hiring aspect of the claim.
Because Plaintiff has failed to demonstrate with specific citations to facts in the record that there
is a genuine dispute as to whether Defendants breached their duties in hiring or supervising their
employees, summary judgment is granted on the remainder of Count II.
C. Count III (IIED) prima facie case
Next, the court must determine whether there is a genuine dispute regarding all the elements of
Plaintiff’s IIED claim against Mr. Buck and Ms. Connell for making comments to and/or
regarding N.R. As an initial matter, the court must determine whether the basis for the claim is
the February 13th comments and/or the use of seclusions and restraints. The complaint indicates
the IIED claim is premised on both the comments and the implementation of the behavior plan
because it incorporates all the previous allegations listed in her “Factual Basis” section. In the
motion for summary judgment, Defendants show that there is no genuine dispute regarding both
factual bases. In response, Plaintiff only mentions the comments. To the extent that the use of
seclusions and restraints were the basis of this claim, the court grants summary judgment
because Plaintiff has failed to meet her burden of persuasion by citing to specific facts in the
record on this point.8 However, the court must still consider whether the comments mentioned by
the Plaintiff are a sufficient basis for the IIED claim.
This court must make “the initial determination of whether a jury could reasonably find that the
alleged conduct satisfies all the elements of an IIED claim.” Fromson v. State, 2004 VT 29, ¶
14, 176 Vt. 395. The Vermont Supreme Court has further explained:
To avoid summary judgment on a claim for IIED, plaintiff must show that the [defendant]
engaged in 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. This is a heavy burden
that requires plaintiff to show that the [defendant’s] conduct was so outrageous in character
and so extreme in degree as to go beyond all possible bounds of decent and tolerable
conduct in a civilized community and be regarded as atrocious and utterly intolerable. The
standard for outrageousness is objective.
Cate v. City of Burlington, 2013 VT 64, ¶ 28, 194 Vt. 265 (internal quotation marks and citations
omitted). In order to meet the “objective test for outrageousness: a plaintiff must demonstrate
legal harm resulting from inflicted distress so severe that no reasonable person could be expected
to endure it.” Baldwin v. Upper Valley Servs., Inc., 162 Vt. 51, 57 (1994). “[M]ere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities” are insufficient to sustain
an IIED claim. Denton v. Chittenden Bank, 163 Vt. 62, 66-67 (1994).
8
However, the court notes that merely because conduct is permitted under Rule 4500 does not
automatically mean that the conduct was not extreme and outrageous. See Restatement (Third)
of Torts: Phys. & Emot. Harm § 46, cmt. e (2012) (“An actor can intentionally or recklessly
cause severe emotional harm while exercising a legal right.”).
11
The parties dispute what words were said, who made each comment, and what comments N.R.
heard. Regardless, Plaintiff has failed to persuade the court that there is a genuine dispute as to
whether N.R. suffered severe emotional distress caused by any comment. See of Restatement
(Third) of Torts: Phys. & Emot. Harm § 46, cmt. g (2012) (“As with all questions of fact, the
court first determines whether the evidence is sufficient to permit a jury to find the actor’s
conduct extreme and outrageous and the harm severe.”).
Defendants cite to N.R.’s testimony as evidence that he was not harmed by the comments. In his
deposition N.R. states: “They didn’t say anything bad. They didn’t say bad things about me.”
N.R. Dep. 11:9-10. When asked if any employees made comments that made him feel upset or
bad, N.R. replied “no.” Id. 11:11-13. Plaintiff argues that “[a]lthough these admissions would
be dispositive of the entire case in ordinary circumstances, it is also true that N.R. cannot read or
sign his deposition because he is a ten year old autistic child.” Plaintiff cites generally to her
expert’s report, but does not provide a specific citation nor explain how having autism would
make N.R. more likely to claim he was not injured, even if he did suffer emotional damage.
Moreover, the court does not find any such statement in the expert’s report that would bolster
such a claim. Accordingly, the court agrees that these statements are credible evidence that there
was no injury.9
Further, the court also concludes that there is no genuine dispute as to the injury and causation
elements because Plaintiff has failed to put forth any facts in the record. Responding to
Defendants’ IIED section, Plaintiff makes the conclusory statement that “[a]t a minimum, a
paraprofessional calling an autistic child ‘a little [dumb-a--] with autism’, by itself, constitutes
outrageous conduct which was done intentionally or with reckless disregard of the probability of
causing emotional distress, resulting in suffering of extreme emotional distress.” Plaintiff does
not cite any facts indicating that N.R. actually suffered “extreme emotional distress.” Plaintiff
may want the court to infer an injury from this comment, however, without more, such an
inference is not reasonable. It is the Plaintiff’s burden to demonstrate she has factual support for
each element and not merely rely on conclusory allegations. Therefore, regardless of whether
Mr. Buck or Ms. Connell made certain comments or whether N.R. heard those comments,10
Plaintiff has failed to show there is a genuine dispute as to whether N.R. suffered “extreme” or
“severe” emotional distress. Thus, the court grants summary judgment on Count III because
Plaintiff has failed to persuade the court that there is a genuine dispute as to material facts on all
the essential elements of her IIED claim.
9
The court also notes that Plaintiff’s expert has not opined that N.R. was injured by the
comments; his opinion is limited to injuries he believes were caused by the use of seclusions and
restraints. See Hasazi Dep. 183:3-7.
10
Dr. Hasazi admits that if N.R. did not hear the comments, the comments would not have
caused any injuries. Hasazi Dep. 176:7-13.
12
D. Count IV (incorporating Counts I-III) prima facie cases
Finally, Defendants have moved for summary judgment as to Count IV. Only SVSU and BSD
remain as Defendants on this claim. This court previously held in denying Defendants’ motion
to dismiss that Plaintiff properly asserted a vicarious liability claim based on Counts I-III.
Therefore, the court interprets Count IV to mean that Plaintiff is re-alleging the same Counts I-III
to be able to maintain a suit where § 901a(b) bars suit against individual employees and also
against BSD and SVSU as employers under traditional notions of respondeat superior.
Accordingly, the court must determine both whether respondeat superior is applicable as well as
whether there are sufficient facts to establish all the essential elements of the three incorporated
counts.
“Under the settled doctrine of respondeat superior, an employer or master is held vicariously
liable for the tortious acts of an employee or servant committed during, or incidental to, the
scope of employment.” Brueckner v. Norwich Univ., 169 Vt. 118, 122-23 (1999). In order to
determine whether an employee’s conduct falls within the scope of employment, Vermont has
adopted the elements set forth in the Restatement (Second) of Agency § 229(1) (1958). Id. at
123. Therefore,
To 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 (d) in a case in which force is intentionally used by
the servant against another ... is not unexpectable by the master.
Doe v. Forrest, 2004 VT 37, ¶ 15, 176 Vt. 476 (quoting Brueckner, 169 Vt. at 123). “The
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.’” Id. (quoting Restatement (Second) of Agency § 228(2)).
For the reasons explained below, the court finds that while the employees were acting within the
scope of their employment, there is not sufficient evidence as to all the essential elements of the
incorporated claims. Therefore the court grants summary judgment on this count.
i. Count IV as it incorporates Count I
As stated previously, “[t]o establish a claim for negligent infliction of emotional distress, a
plaintiff must make a threshold showing that he or someone close to him faced physical peril.”
Brueckner, 169 Vt. at 125. Then, if this threshold showing is met, the issue is whether plaintiff
suffered a physical impact from an external force. Id.
If there has been an impact, plaintiff may recover for emotional distress stemming from
the incident during which the impact occurred. If plaintiff has not suffered an impact,
plaintiff must show that: (1) he was within the “zone of danger” of an act negligently
13
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.
Id. (internal citation omitted).
Here, there are two possible bases for the NIED claim: the February 13th comments and the use
of restraints and seclusions.
1. NIED claim based on the comments
Without making specific findings as to what was actually said, by whom, and which comments
were heard by N.R., it is possible to conclude that some statements were within the scope of
employment (e.g. telling N.R. that they were going to call the police) and some comments (e.g.
referring to him as a “[dumbas--]”) were outside the scope of employment. Comments such as
the one calling N.R. a “[dumba--]” were rooted in the employees’ frustration, and cannot
properly be seen as intending to advance SVSU and BSD’s interests. See Doe v. Forrest, 2004
VT 37, ¶ 16. But even if all the comments were made within the scope of Mr. Buck and Ms.
Connell’s employment, N.R. never faced physical peril, the threshold requirement for a NIED
claim. Thus, summary judgment is proper as to this issue within Count IV because Plaintiff has
failed to show that there are sufficient facts to support all the essential elements of her claim
based on the February 13th comments.
2. NIED claim based on use of restraints and seclusions
Next, the court must determine whether SVSU and BSD are vicariously liable for the secluding
and restraining of N.R. Clearly, both techniques were within the scope of employment. They
were disciplinary tactics of the kind that school employees were hired to perform; they occurred
within school hours and within the school building; the employees utilized the tactics with the
purpose of serving the municipalities by adhering to the behavior plan; and the force used in
restraining N.R. was not “unexpectable” by the municipalities as it is authorized by Rule 4500.
Both the restraints and the seclusions meet the threshold “physical peril” requirement. Ms.
Connell explained in her deposition that when N.R. became physically aggressive, such as
raising a fist, they would restrain him using either a sitting or standing “basket hold.” Connell
Dep. 106:19-107:9. Ms. Reilly testified that she believed her son’s bruises were caused by these
restraints. J. Reilly Dep. 11:7. Thus, it is a reasonable inference that the employees exposed
N.R. to the risk of bodily harm by holding onto an aggressive, struggling child, even if the
restraint was not tight. While N.R. was in seclusion, there was still a risk he could physically
harm himself before either employee could reach him. Accordingly, in both instances Plaintiff
has shown sufficient facts indicating this threshold requirement has been met regarding the use
of restraints and seclusions.
The court must then address whether SVSU and BSD are vicariously liable for any negligently
inflicted emotional distress caused by either the use of seclusions or restraints.
14
Regarding the use of seclusions, there was no physical impact involved. Therefore, Plaintiff
must show (1) N.R. was within the “zone of danger” of an act negligently directed at him by Mr.
Buck and Ms. Connell; (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. Defendant asserts that
there is no evidence that N.R. suffered bodily injury as a result of the seclusions. The burden is
on Plaintiff to show that there is a genuine dispute that N.R. did suffer a substantial bodily injury
as a result of the seclusions. Plaintiff has not met this burden. In response to Defendants’
argument, Plaintiff simply states, “The behaviors exhibited by N.R. after attending school as
detailed by Dr. Hasazi and his mother … along with those cited by the Defendant make out a
case for determination of the weight of the evidence by the jury.” Pl.’s Resp. to Defs.’ Mot. for
Summ. J. at 6. Nothing in this statement shows facts indicating that there were bodily injuries
resulting from the seclusions.
In the section responding to Defendants’ argument regarding Plaintiff’s NIED claim, Plaintiff’s
response to the summary judgment motion never mentions bodily injuries caused by the
seclusions:
The overuse of basket holds which involved substantial physical contact [that] at a
minimum create[s] a question of fact. … [N.R.] was moved to a different school where his
behaviors markedly improved which shows further proof and confirmation of the injuries
that [N.R.] received as a result of the Defendants’ actions.
Id. at 14. Plaintiff goes on to cite Dr. Hasazi’s report which mentions “suffering,” but does not
clarify whether that suffering was physical or mental.11 Therefore, the court finds that Plaintiff
has not met her burden regarding the essential element of showing bodily injuries caused by the
seclusions. Summary judgment is proper regarding the claim that SVSU and BSD are
vicariously liable for any negligently inflicted emotional distress caused by the use of seclusions.
Regarding the use of restraints, there was physical impact involved. Thus, Plaintiff may recover
if there are facts supporting the standard elements of all negligence claims: duty, breach,
causation, and injury.
Defendants assert that there is no applicable duty here. This argument goes to the very heart of
this case. While conceding that school municipalities have a duty to protect students from
intentional torts such as assault and battery under 16 V.S.A. § 834(a), they argue that there is no
duty owed to parents or students to reasonably implement an effective behavior plan. They say
that to impose such a duty of care would essentially make them liable for “educational
malpractice” – a theory of liability that has not been addressed in Vermont, but has been rejected
in other states. See Defs.’s Mot. Summ. J. at 22.
11
In Ms. Reilly’s deposition, she states that N.R. came home with bruises before and after
attending the programming at the church in October 2012. J. Reilly Dep. 9:20-11:4. These
bruises are the only physical harm Plaintiff contends N.R. suffered. Id. 11:7. However, her brief
does not cite facts in evidence to show that these bruises were caused by the seclusions. In fact,
she believed they were caused by the use of restraints. Id. 11:7.
15
It is evident that Plaintiff believes that Defendants are liable for not ending the use of restraints
and seclusions despite observing N.R.’s behavior getting worse. See J. Reilly Dep. 34:21-25.
Plaintiff’s expert believes that some use of seclusion and restraints was appropriate to address
N.R.’s behaviors; however, he also believes that the employees “should have figured out another
approach that didn’t worsen his behavior, causing the need for increased seclusion and
restraints.” Hasazi Dep. 183:18-21.
The court concludes that school municipalities owe a duty of care under these circumstances. In
enacting 16 V.S.A. § 834(a), the Vermont Legislature imposed on school municipalities a duty of
care to their students. Id. (“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.”). The express language of the statute does not limit the
scope of the liability to injuries caused by intentional torts. Moreover, the Vermont Supreme
Court has previously discussed this statutory duty using broad language. See Edson v. Barre
Supervisory Union No. 61, 2007 VT 62, ¶¶ 10-11, 182 Vt. 157 (“[W]here school administrators
or teachers fail to exercise ordinary care in supervising students, they may be held liable to the
extent their acts or omissions are the proximate cause of a student’s injury.”); see also Brueckner
v. Norwich Univ., 169 Vt. 118, 122-26 (1999) (holding that a school may be held vicariously
liable for claims under both assault and battery theories as well as a NIED claim). Thus, SVSU
and BSD owed N.R. a duty of care to use restraints in a reasonably prudent manner to prevent
him from being exposed to unreasonable risk of injury, to the extent that the type of injuries N.R.
suffered were foreseeable.
Defendants’ citation to Sellers v. School Board of the City of Manassas, 960 F. Supp. 1006 (E.D.
Va. 1997), and the line of cases beginning with Peter W v. San Francisco Unified School
District, 60 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976), is unpersuasive for several reasons.
First, § 834(a) refers to the duty in general terms. Second, this case does not fit neatly into any
of the categories defined in Sellers because the use of restraints was a disciplinary technique that
was part of a broader behavior plan designed to motivate N.R. to learn. See Sellers, 960 F. Supp.
at 1013 (listing categories of educational malpractice claims). While the alleged negligence
could fall under Sellers’s third category, the negligent failure to treat a student’s disability, the
disciplinary nature of these acts distinguishes this case. Third, the court does not believe that this
conclusion will open the floodgates of litigation, a dominant concern in this line of cases. See
Peter W, 60 Cal. App. 3d at 825. Whether to impose a duty is a question of fairness depending on
a variety of public policy considerations and relevant factors. Deveneau v. Weilt, 2016 VT 21, ¶
8.12 The court determines that it is fair, given these facts, to conclude that § 834(a) applies.
Defendants assert that if there was a duty imposed, it would be a professional standard of care
akin to the duty in medical malpractice suits. They claim this is significant because a
professional standard of care must be established by expert testimony. See Wilkins v. Lamoille
Cnty. Mental Health Servs., Inc., 2005 VT 121, ¶ 16, 179 Vt. 107. However, the court concludes
that this is not a professional standard of care because § 834(a) only imposes an ordinary
12
Available at:
www.vermontjudiciary.org/LC/Supreme%20Court%20Published%20Decisions/op14-330.pdf.
16
standard of care, not a heightened professional standard. Therefore, no expert is needed for the
element of duty.
Next, Defendants implicitly argue there is no genuine dispute as to the breach element because
the use of restraints is authorized under the Vermont Agency of Education Rule 4500 and
Plaintiff has not shown any facts indicating there is a genuine dispute that the use of restraints
violated Rule 4500. As stated above, the court agrees that there is no factual dispute in the
record indicating Defendants violated Rule 4500. However, the general rule in tort law is that
compliance with a rule is merely evidence of non-negligence; it does not preclude a finding of
negligence where a reasonable actor would have taken precautions in addition to those mandated
by the rule. See Restatement (Second) of Torts § 288C (1965); Restatement (Third) of Torts:
Phys. & Emot. Harm § 16 (2010). While showing compliance with Rule 4500 is sufficient to
meet Defendants’ initial burden, Plaintiff’s failure to rebut this showing is not fatal to her claim.
The court concludes that Plaintiff has shown enough facts to create a genuine dispute as to
whether Defendants breached their duty. The record shows that SVSU’s and BSD’s employees
were aware that N.R.’s problem behaviors were getting worse, or at least were not improving,
and they continued to use restraints. Thus, a jury should determine whether Defendants’ conduct
fell below the ordinary standard of care required under the circumstances.
Next, the court must determine if there are genuine disputes as to the causation and injury
elements. Defendants raise two arguments as to these elements. First, they contend that Plaintiff
has not shown what the injuries specifically were or that they were caused by Defendants. The
court agrees that Plaintiff’s interrogatory answers merely repeated the allegations in her
Complaint. They did not list the specific injuries caused by the actions of the employees. If that
were all she did, summary judgment would be granted on this ground. However, the court finds
that Plaintiff could meet her burden by pointing to Dr. Hasazi’s report and deposition, which she
did. See Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 6.
Defendants’ second argument is that Dr. Hasazi’s opinions are inadmissible and cannot be
considered because they do not meet the requirements of V.R.E. 702 and Daubert. Under V.R.E.
702, a qualified expert may testify as to his or her opinion if: “(1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.” Vermont
Rule 702 is derived from Federal Rule 702 and Vermont courts follow the federal Daubert
analysis for determining whether to admit or exclude expert testimony. 985 Assocs., Ltd. v.
Daewoo Elecs. Am., Inc., 2008 VT 14, 183 Vt. 208. Daubert and V.R.E. 702 establish a flexible
standard, requiring only that the proposed expert testimony be both relevant and reliable in order
to be admissible. Id. ¶ 6. The key factors to consider include:
 Did the expert base his or her opinions on prior, independent research, or were
the opinions generated solely for use in litigation?
 If the testimony arose from litigation work, are the theories underlying the
opinions generally accepted within the relevant scientific community?
17
 If the theories are not “generally accepted,” did the expert at least subject the
theories to peer review and publication?
 If the expert did not subject his work to peer review and publication, was the
expert employing a “standard” scientific methodology in arriving at his or her
conclusions?
 If the expert did not use an accepted methodology, was the theory tested and/or
was it susceptible to testing by others?
 If the theory was, or could be, tested, what was the known or potential rate of
error in the expert’s analysis?
Damian D. Capozzola, Expert Witnesses in Civil Trials § 2:17 (2015).
In conducting this analysis, a trial judge acts as a gatekeeper; screening expert testimony in order
to ensure it is reliable and helps to resolve the issue in dispute. Daewoo, 2008 VT 14, ¶ 6. The
primary focus of the court’s analysis is on “excluding ‘junk science’ – because of its potential to
confuse or mislead the trier of fact – rather than serving as a preliminary inquiry into the merits
of the case.” Id. ¶ 10. An opinion resting on “nebulous methodology” is unhelpful to the fact
finder and is inadmissible. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶
15 187 Vt. 229. It is the proponent of expert testimony who has the burden to establish the
testimony’s reliability. Daewoo, 2008 VT 14, ¶ 13.
Defendants argue that Dr. Hasazi’s fails the Daubert/V.R.E. 702 test on the ground that his
methodology does not meet the standards set forth in the Handbook for Forensic Psychology and
the American Psychological Association’s Specialty Guidelines for Forensic Psychology. They
claim that Dr. Hasazi’s failure to compile and analyze the number and frequency of N.R.’s
problem behaviors for time periods before, during, and after N.R. was at BennEl violates the
Handbook’s requirement that the evaluator collect data using a comprehensive, relevant, and
valid collection method and use an appropriate interpretation method. They add that this is
significant because N.R. had these types of problem behaviors and experienced anxiety before
attending BennEl. Defendants also assert that Dr. Hasazi’s failure to consider behavior tests
completed by Ms. Reilly, N.R.’s aunt, and another school employee who worked with N.R. after
these events indicates that Dr. Hasazi ignored data undercutting his opinion, a violation of the
Specialty Guidelines. Finally, Defendants allege that Dr. Hasazi’s failure to administer the
Youth Self-Report test and to review and evaluate school employees’ and consultant’s affidavits,
as well as a video-recorded interview with N.R., show Dr. Hasazi failed to collect data from
collateral sources. In sum, Defendants contend that Dr. Hasazi’s methodology is nebulous and
therefore should be excluded.
In response, Plaintiff simply states that these arguments go to the weight of the evidence, not to
the admissibility of Dr. Hasazi’s opinion. Her entire reply is as follows:
[An e]valuation by a clinical child psychologist relative to an autistic child in which the
expert has great expertise hardly constitutes ‘junk science’. These types of conclusions are
18
made every day in tort cases by health care professionals as to whether a Plaintiff has or
has not been injured as a result of negligent acts.
Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 6.
Such a blatant conclusory statement is not sufficient to meet Plaintiff’s burden, as the proponent
of Dr. Hasazi’s expert opinion, to establish the reliability of that opinion. A proposed expert’s
relevant experience is not sufficient; the expert’s methodology in reaching his or her opinion
must be reliable. While it could be the case that such statistical analysis is not necessary or that
Defendants’ interpretation of the Handbook and Specialty Guidelines is erroneous, Plaintiff has
not cited to any caselaw, scholarly article, or even an affidavit from Dr. Hasazi to explain why
Defendants’ argument is incorrect. Dr. Hasazi stated in his deposition that he did not believe it
was necessary to compare sets of data in order to establish causation. See Hasazi Dep. 55:14-20.
However, because Defendants met their burden by citing specific guidelines, Plaintiff had the
burden to show that Dr. Hasazi’s methodology met these or other relevant guidelines or to
explain in a non-conclusory manner why compiling and analyzing data sets for the
before/during/after time periods was unnecessary. Accordingly, because Plaintiff has failed to
meet her burden to demonstrate that Dr. Hasazi’s opinion is reliable, it cannot be used to meet
the causation or injury elements.
Causation and injury are both essential elements to this claim. Plaintiff has not pointed to other
credible facts in the record to demonstrate that N.R. suffered injuries caused by Defendants’
conduct. Therefore, Plaintiff has failed to carry her burden to show there is a genuine dispute as
to the causation and injury elements. Thus, because Plaintiff has failed to show a genuine
dispute as to facts supporting all the essential elements of her claim, summary judgment as to
this issue within Count IV is proper.
ii. Count IV as it incorporates Count II
Next, Plaintiff claims that SVSU and BSD provided negligent supervision of Clayton Buck and
Laurie Connell and negligently hired Laurie Connell. For negligent supervision claims, Vermont
follows § 213 of the Restatement (Second) of Agency, which provides:
A person conducting an activity through servants or other agents is subject to liability for
harm resulting from his conduct if he is negligent or reckless … in the employment of
improper persons or instrumentalities in work involving risk of harm to others: in the
supervision of the activity; or … in permitting, or failing to prevent, negligent or other
tortious conduct by persons, whether or not his servants or agents, upon premises or with
instrumentalities under his control.
Haverly v. Kaytec, Inc., 169 Vt. 350 (1999) (quoting Restatement (Second) of Agency § 213
(1958)). “Pursuant to § 213, liability exists only if all the requirements of an action of tort for
negligence exist.” Id. These requirements or elements are: “a legal duty owed by defendant to
plaintiff, a breach of that duty, actual injury to the plaintiff, and a causal link between the breach
and the injury.” Ainsworth v. Chandler, 2014 VT 107, ¶ 11, 197 Vt. 541 (quotations omitted).
In a negligent supervision case, a supervisor has the duty “to anticipate and to guard against the
19
human traits of his employees which unless regulated are likely to harm others.” Brueckner v.
Norwich Univ., 169 Vt. 118, 127 (1999) (quoting Restatement § 213 cmt. g). As stated in the
analysis section regarding Count II, Plaintiff failed to cite facts indicating that Ms. Buck
breached her duty to anticipate and guard against harmful traits of Mr. Buck and Ms. Connell.
Accordingly, Plaintiff has failed to meet her burden of persuasion in this case. Thus, summary
judgment on this issue is appropriate.
Plaintiff’s claim against SVSU and BSD for the alleged negligent hiring of Ms. Connell similarly
must fail because Plaintiff has failed to make specific citations to facts in the record showing that
there is a genuine dispute that there was a breach of duty. Thus, summary judgment on this part
of Count IV is proper because there is no genuine dispute as to whether Plaintiff has facts to
meet all the elements of negligent supervision and hiring.
iii. Count IV as it incorporates Count III
The final claim incorporated into Plaintiff’s Count IV is that SVSU and BSD are liable for their
agents’ intentional infliction of emotional distress on N.R. As stated above, Count III only
alleged liability regarding Mr. Buck and Ms. Connell’s comments to and/or regarding N.R. Just
as in Count III, Plaintiff’s failure to cite specific facts in the record showing that there is a
genuine dispute as to whether N.R. suffered severe emotional distress caused by the comments is
fatal to this claim. Therefore, summary judgment is proper as to this part of Count IV.
iv. Count IV conclusion
In sum, because summary judgment is appropriate as to all the incorporated issues in Count IV,
the court grants Defendants SVSU and BSD summary judgment as to Count IV as a whole.
Order
Based on the reasoning and conclusions set forth above, WHEREFORE, it is hereby ORDERED
that Defendants’ motion for summary judgment is hereby GRANTED as to Plaintiff’s claims I-
IV as to all Defendants. Those claims are hereby DISMISSED. Defendants may submit an
order of judgment pursuant to the Vermont Rules of Civil Procedure.
Electronically signed on March 31, 2016 at 04:30 PM pursuant to V.R.E.F. 7(d).
John W. Valente
Superior Court Judge
20