Opinion
CIVIL ACTION NO. 1:14-02855
06-28-2017
AMANDA BALL, individually And o/b/o her Minor Children v. RAPIDES TRAINING ACADEMY, ST. MARY'S TRAINING SCHOOL, AND ABC INSURANCE CO.
JUDGE JAMES T. TRIMBLE, JR.
MAG. JUDGE KAREN L. HAYES
MEMORANDUM RULING
Before the court are two motions: (1) "Defendants' Motion for Summary Judgment" (R. #63) filed by St. Mary's Training School, Karen Coor, Leslie Draper, Anita Moore, Heather Nida, Stephanie Warden, Somona Allen, Christi Guillot, Mavis Champagne and Tony Vets (collectively referred to as the "St. Mary's Defendants") and (2) "Defendant's Sealed Motion for Summary Judgment" (R. #64) filed by the Rapides Parish School Board ("RPSB"). RPSB adopts by reference the St. Mary's Defendants' Motion for Summary Judgment. In their motion, Defendants maintain that the summary judgment evidence will indisputably show that St. Mary's met its duty of care to KG while he was at St. Mary's and Plaintiff, Amanda Ball's claims of neglect and physical abuse fail as a matter of law.
STATEMENT OF MATERIAL FACTS
KG is Plaintiff, Amanda Ball's oldest son. He was born on February 1, 2000 and was diagnosed with severe autism at the age of three (3). It is undisputed that KG is hyperactive, impulsive, aggressive, engaged in SIB, had temper tantrums, threw himself against floors and walls, head bangs, and bites himself and others. KG was also diagnosed with PICA, a condition where KG eats non-edible items such as paper, string and leaves. It is undisputed that KG, along with other autistic children suffer from frequent constipation. It is also undisputed that KG suffered from frequent bouts of eczema.
Self-injurious behaviors.
St. Mary's exhibit A, Amanda Ball depo. pp. 17, 32 and 18-20.
Id. pp. 20-21.
When KG lived at home he would eat string and carpet despite Ms. Ball keeping watch on him throughout the day; he also ate carpet at his former school and later discharged the carpet in his stool. As described by Dr. Willis, when KG was nine (9), he was "hitting himself daily, he is aggressive and dangerous to others . . . and prone to emotional outbursts and tantrums."On August 8, 2010, at the age of ten (10), in an act of aggression, KG punched through a window causing severe lacerations. Prior to being admitted to the hospital for treatment, between 2009 and 2013, KG suffered from severe constipation and was admitted to the hospital for treatment.
Id. pp. 21-22.
St. Mary's exhibit A-3.
St. Mary's exhibit A-5.
Id. at p. 56.' exhibit #6.
Dr. Ryan, KG's pediatrician, noted KG's behavior as being violent, eloping and posing a danger to himself and others; he further noted that KG could destroy a room quickly and believed the lives of KG's two (2) younger siblings had been adversely affected by KG's aggressive behavior. Dr. Ryan recommended respite care for KG in order to give Ms. Ball and her family some normalcy.
St. Mary's exhibit #A-8.
Id.
When KG attended special education classes in 2011, the teachers could not prevent KG from kicking or biting himself or others. Ms. Ball does not dispute this depiction of KG's behavior and further acknowledges that KG throws himself in the air and lands on his back and also punches holes in walls.
St. Mary's exhibit A, Ball depo. pp. 68-70.
Id. pp. 73-74.
On November 14, 2011, KG was admitted to North Lake Regional Behavioral Center for punching a teacher in the face, kicking and biting. On December 13, 2011, Dr. Crafton evaluated KG and found that he engages in SIB and violent behavior towards others. On May 3, 2012, Ms. Ball took KG to Brentwood Hospital due to his own self-injurious behavior which now included banging his head against the wall and hitting his younger sister. Dr. Dopson, from Brentwood Hospital noted that KG had a "significant history of self-injurious behavior punching himself in the face and thighs repeatedly."
Id. pp. 59-60; St. Mary's exhibit #7.
St. Mary's exhibit #10.
St. Mary's exhibit #11.
St. Mary's exhibit #12.
On October 12, 2012, KG was admitted to the hospital because of constipation and was found to have ingested a nickel; the doctor's report noted that KG has a habit of eating foreign objects including strings and carpet. On October 25, 2012, KG was admitted to the hospital for severe eczema despite using cream and soap designed to curb KG's eczema. The hospital records note that KG gets
St. Mary's exhibit #15 and Ball depo. p. 97.
St. Mary's exhibit #16, Ball depo. p. 97.
a re-occurring rash once a year. Pt. has a rash increase of elbows and now on his face. Pt. was seen here x 2 weeks ago and the steroid given here did work, cream did not.
St. Mary's exhibit #16.
On March 14, 2013, KG was diagnosed with eczema as a "persistent rash for the past few months that has not gotten any better." In the Spring of 2013, in her endeavors to have KG admitted to St. Mary's, Ms. Ball wrote the following letter wherein she discussed the difficulties she was having with KG:
St. Mary's exhibit #17; Ball depo. pp. 100-101.
• Diagnosed with Autism at 2 ½ years of age
• Frustration after trying medications, diet suggestions, psychology and psychiatry guides, behavior therapy without the results hoped for
• KG not getting the help he needs at home
• The family suffering due to KG's behavior
• KG having no inner peace and making his life, Ms. Ball's life and the other children's life a nightmare
• Screaming and self-abuse including hitting himself and random outbursts of squealing
• Not being able to go in public
• The home being destroyed daily when KG goes into rooms and dumps or ruins things including the other children's things
St. Mary's exhibit #23.
St. Mary's offered admission to KG on May 28, 2013. Ms. Ball notes that St. Mary's initially rejected KG's admission, but later without explanation accepted him. KG's admission with St. Mary's was the first time he had ever spent time away from his family. KG's admission was on a 6-month trial basis "during which time we may request immediate removal if it becomes apparent that we cannot meet the child's needs in this setting." Ms. Ball could have removed KG at anytime.
St. Mary's exhibit #25.
Id.
Id. Ball depo. pp. 137-138.
Ball depo. p. 140.
Shortly after being admitted, St. Mary's convened an Interdisciplinary Team to meet with Ball in order to develop a plan to address KG's needs. St. Mary's and Ms. Ball agreed to an Individual Program Plan ("IPP") for KG to address his medical, nutritional and behavioral assistance needs. Ms. Ball acknowledged St. Mary's decision to admit KG did not guarantee St. Mary's could cure KG of his affliction or aggressive SIB and corresponding physical consequences thereof.
St. Mary's exhibit #26; Ball depo. pp. 141-143.
St. Mary's exhibit G.
St. Mary's exhibit A, Ball depo. P. 146.
KG attended St. Mary's between June 10, 2013 and October 3, 2013 and participated in activities including (1) school at the Rapides Training Academy between mid-August and October 3, 2013; (2) arts and crafts, physical therapy, behavioral therapy, field trips and others. KG ate a balanced diet every day at St. Mary's. St. Mary's asserts that KG received proper medical care while at St. Mary's including treatment for eczema, constipation and the occasional bruise, cut or scrape, whereas Ms. Ball alleges neglect and abuse.
St. Mary's exhibit H, Christi Guillot Affidavit.
St. Mary's exhibit I.
St. Mary's exhibit J., Dr. Guillot Affidavit.
The Principal at Rapides Training Academy ("RTA"), Margarite McNeeley, where KG attended school, testified that some of KG's bruising was the result of KG throwing himself against a cinder block wall and onto the floor even though Ms. McNeeley was walking next to KG. While attending RTA, KG acted in a non-compliant manner, became agitated, threw himself across his desk, ail of which left bruise marks which corresponded with bruising observed by Ms. McNeeley and Nurse Fuqua.
St. Mary's exhibit B, McNeeley depo. pp. 64-65, 68-69.
During her deposition, Ms. Ball testified that she would not have returned KG to St. Mary's at the end of her September 1, 2013 visit, had she believed St. Mary's was neglecting or otherwise mistreating KG. Between September 1, 2013 and October 3, 2013, Ms. Ball did not visit KG at St. Mary's. On October 3, 2013, Ms. Ball went to RTA and removed KG from school and did not return him to St. Mary's.
St. Mary's exhibit A, Ball depo. p. 231.
St. Mary's exhibit A, KG Leave Records.
Id. p. 237 and 244.
On October 3, 2013, Ms. Ball expressed concerns of possible child abuse and/or neglect to Nurse Fuqua and Ms. McNeeley. Because they were "mandatory reporters', RTA filed the Rapides Parish School Board Child Abuse/Neglect Reporting Forms against St. Mary's even though Ms. McNeeley and Nurse Fuqua did not believe KG had been abused or neglected by St. Mary's. Nurse Fuqua testified that she would not have filed the child abuse/neglect form had it not been for Ms. Ball telling her about her concerns. Ms. McNeeley testified that KG's aggressive behavior corresponded with bruising seen by her and Nurse Fuqua and that at no time did she see any evidence St. Mary's permitted or allowed KG to be bruised.
RPSB exhibit 3, Fuqua depo. pp. 132-134, 137, 139-142, 144-145.
St. Mary's exhibit B, McNeeley depo. pp. 68-69.
Ms. Ball testified that she had no knowledge of anyone at St. Mary's who physically hit or abused KG. Ms. McNeeley testified that she did not want to sign the Child Abuse Neglect Form but was required to do so due to the complaint made to her and her being a "mandatory reporter."
Id. p. 253.
St. Mary's exhibit B, McNeeley depo. pp. 94-95.
After she withdrew KG from St. Mary's, Ms. Ball reported possible abuse and neglect to the Alexandria Police Department ("APD"). The APD never substantiated Ms. Ball's allegations of abuse, nor did the State's Department of Children and Family Services.
St. Mary's exhibit A, p. 232.
Dr. Patterson, a board certified pediatrician, and KG's physician who treated KG for staph infections, eczema, and constipation both during and after KG's stay at St. Mary's, noted that a staph infection was not an unusual event, and KG's contraction of a boil did not mean Ms. Ball (KG's caregiver during one occurrence of a staph infection and constipation) did not indicate neglect. Dr. Patterson opined that the nurses and employees at St. Mary's were helpful and responsive to KG's various medical issues. Dr. Patterson testified that she does not have any evidence that anyone at St. Mary's physically and/or sexually abused, neglected or starved KG.
St. Mary's exhibit C, Patterson depo. pp. 10,25, 26, 29-33, 37, 38,
Id. p. 39.
Id. p. 45.
Christine McGinnis is a certified school psychologist who performs psychological, intellectual and behavioral assessments of students, including special needs students. Ms. McGinnis worked with KG as a school psychologist since he was in second grade. Ms. McGinnis testified that KG needed constant supervision which she explained was to keep a close eye on him and be in close proximity. Ms. McGinnis observed KG in class where KG had a teacher and a paraprofessional with him at all times; even with this type of supervision, these adults could not stop KG from engaging in self-injurious behaviors, including, but not limited to picking at his skin causing cuts and infections, and hitting and bruising himself. For example, when KG was in the Fifth grade with two adults supervising, he engaged in skin picking and pulling his hair out. Just before being admitted to St. Mary's, Ms. McGinnis witnessed KG strike Ms. Ball and act aggressively towards her. McGinnis testified that when KG attended St. Mary's, at age 13, he was going through puberty, which could result in further aggressive and sexual-related behavior.
St. Mary's exhibit D, McGinnis depo. p. 13, 17,
Id. p. 14-15.
Id. p. 106.
Id. pp. 32, 33, 34.
Id. p. 35.
Id. p. 27.
Id. p. 29.
Immediately prior to entering St. Mary's, KG exhibited various forms of SIB, screamed and vocalized loudly, acted aggressively toward staff, and posed a danger to himself. Ms. McGinnis testified that KG's self-injurious behavior became worse in the seventh grade, the same grade KG was in at St. Mary's.
Self-inflicted behaviors.
Id. pp. 42-45; St. Mary's exhibit D-75.
Id. McGinnis depo. pp. 38-39.
Dr. Lisa Emrick, an expert in Pediatrics, Child Neurology and Medical Genetics, opined that St. Mary's properly supervised KG and did not abuse or neglect him. Dr. Emrick further opined that it is impossible to totally prevent bruises, scratches, bites and other consequences of SIBs in children like KG.
St. Mary's exhibit K, Emrick Affidavit and Expert Report.
Id. p. 3.
Dr. David Guillot is and was St. Mary's Medical Director including the time period KG attended St Mary's. During KG's stay at St. Mary's, Dr. Guillot directed the nurses to treat KG for constipation, eczema, bites and scrapes. Based on Dr. Guillot's personal observations at St. Mary's, there was no evidence that St. Mary's abused and/or medically neglected KG during his stay there.
St. Mary's exhibit J.
Id.
Id.
Dr. Schreiner is a psychologist and Director at the Northlake Resource Center in Hammond, Louisiana. Dr. Schreiner initially discharged KG from his care on November 7, 2012 but saw him again on November 21, 2013. During the November visit, Dr. Schreiner noted that KG was still engaging in self-injurious behaviors including "hitting wall, hitting head very hard, hitting private area, and ripping." Currently, KG is still engaging in self-injurious behaviors, biting himself and engages in PICA.
St. Mary's exhibit E.
Id. p. 36; St. Mary's exhibit E-77.
Id, pp, 41-42,
Dr. Schreiner reported that it would be nearly impossible for any facility to prevent KG from engaging in self-injurious behaviors, or from biting himself even if two clinicians were watching him at all times. Dr. Schreiner did not suspect any abuse or neglect by St. Mary's.
Id. p. 27.
Id. p. 28.
Id. pp. 43-44.
After leaving St. Mary's on October 3, 2013, on October 17, 2013, KG was taken to Our Lady of Lake Livingston Hospital for an infection from an ingrown toenail. On October 29, 2013 KG was seen by Dr. Patterson for a boil which resulted in a staph infection.
St. Mary's exhibit A, pp. 264-265; St. Mary's exhibit A-49.
Id. p. 269; St. Mary's exhibit A-50.
Ms. Ball testified that KG's severe SIBs continued at home and school after leaving St. Mary's. On June 29, 2015, Ms. Ball took KG to the hospital because KG engaged in violent SIBs and posed a threat to himself, Ms. Ball and others. As of that date, KG continued to suffer from acute constipation, acute eczema, SIBs, which included slamming himself into a brick wall with sufficient force to cause loss of consciousness, biting himself and punching Ms. Ball. KG's behavior resulted in being admitted to Brentwood Hospital.
St. Mary's exhibit A, p. 269; St. Mary's exhibit A-53; St. Mary's exhibit A-54.
St. Mary's exhibit A, p. 297.
St. Mary's exhibit A, Ball depo. pp. 299-301.
St. Mary's exhibit A-57.
After leaving Brentwood Hospital on July 31, 2015, Ms. Ball enrolled KG in a group-home facility where KG lives with other similar children and continues to engage in SIBs. On January 26, 2016, while at Albany High School, KG slid feet first on his stomach down a flight of stairs creating a cut on his right leg. On March 15, 2016, while living in the Res-Care Group Home, KG became upset and broke a glass window with a paraprofessional sitting right next to him. Between March 16, 2016 and April 5, 2016, KG hit a coach in the face and flicked another resident's chin with his finger causing her to bite her tongue, all while being constantly supervised. KG also climbed a bathroom stall and beat his head with his fist before grabbing a computer and throwing it on the table. KG struck a teacher so hard in the face, the teacher almost lost consciousness.
Res-care.
St. Mary's exhibit A, Ball depo. pp. 306-307, 312.
St. Mary's exhibit M.
St. Mary's exhibit N; St. Mary's exhibit T.
St. Mary's exhibit N.
Id.
Id.
On July 8, 2016 Dr. Donnel Ashford wrote a psychological update on KG; at the time of the report KG lived at Res-Care. Despite receiving one on one supervision, KG engaged in the following:
St. Mary's exhibit O.
Exhibited self-injurious behavior (forced himself to throw up after eating by using a spoon, his fingers, or a straw), shoved crayons and the jack part of headphones in his ears, scratched and bit himself, banged his head on the floor and walls and punched things (computer monitors, televisions, windows, doors and walls) and people (peers and teachers). According to his IEP (Individual Educational Plan), he exhibited severe behavior as a result of a medication change that resulted in hospitalization.
Id.
On July 22, 2016, Res-Care staff noted KG punched a mirror resulting in several cuts and scrapes requiring emergency room treatment. On August 29, 2016, Res-Care nurses assessed KG with a gash to the left wrist. On September 2, 2016, KG required eight (8) stitches in his right forearm and on September 6, 2016, KG pulled out some of the previously inserted stitches requiring additional medical treatment. On October 31, 2016, teachers at Albany High School noted KG continued to hurt himself and others. On October 31, 2016, teachers at Albany High School documented KG gettingfrom his chair and punching a window causing bleeding and injury to his hand.
St. Mary's exhibit P.
Id.
Id.
St. Mary's exhibit Q.
St. Mary's exhibit R.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law." A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim." Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law. There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. The court will construe all evidence in the light most favorable to the nonmoving party, but will not infer the existence of evidence not presented.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999).
Vera v. Tue, 73 F.3d 604, 607 (5th Cir. 1996).
Anderson, 477 U.S. at 249.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Anderson, 477 U.S. at 249-50.
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
LAW AND ANALYSIS
Defendants maintain that summary judgment is appropriate to dismiss all claims asserted by Plaintiffs. The St. Mary Defendants seek to dismiss the official capacity claims against defendants, Karen Coor, Leslie Draper, Anita Moore, Heather Nida, Stephanie Warden, Somona Allen, Christi Guillot, Mavis Champagne, and Tony Vets. The St. Mary's Defendants further seek to dismiss Plaintiffs' claims of federal due process and equal protection because they are vague and unspecified. The St. Mary's Defendants seek to dismiss all claims of abuse and/or neglect because either they are prescribed, or alternatively, they have no factual or legal basis. The St. Mary's Defendants move to dismiss Plaintiffs' claim for LeJeune damages because they fail as a matter of law. Finally, the St. Mary's Defendants move to dismiss Plaintiffs' breach of contract and fraud claims for lack of merit.
Official capacity claims
Plaintiffs named Karen Coor, Leslie Draper, Anita Moore, Heather Nida, Stephani Warden, Somona Allen, Christi Guillot, Mavis Champagne and Tony Vets in their official capacity only. These Defendants seek to be dismissed because they are treated the same as claims against St. Mary's. Defendants maintain that a suit against a corporation or employer and its employee, sued in his/her official capacity potentially makes the corporation/employer liable twice for the same conduct citing Oubre v. Entergy Operations, Inc. The court agrees with these Defendants and will dismiss them with prejudice in their official capacity.
1996 WL 2858, *1 (E.D. La. Jan. 22, 1996), citing Sims v. Jefferson Downs Racing Assn., Inc., 778 F.2d 1068, 1081 (5th Cir. 1985)(a district court's entry of judgment against both the corporation and [defendant] in her official capacity would make the corporation liable twice for the same act).
Federal due process and equal protection claims
Defendants maintain that the complaint fails to assert any federal causes of action. As to their federal due process and equal protection claims, Plaintiffs' complaint alleges the following:
[d]efendants have violated Plaintiffs' various civil rights, including those specific rights guaranteed by the IDEA Section 504, and Title II as well as more general constitutional provisions clearly establishing rights to due process of the law, liberty, and equal protection of the law, among other rights, privileges and immunities guaranteed to them pursuant to the 1st and 14thAmendments to the United States Constitution and also the Louisiana Constitution of 1974, as well as the benefit of other rights, privileges and immunities afforded to them by various Federal statutes and others to be clarified upon continued investigation and discovery in this matter.
Pursuant to a motion to dismiss, the court previously dismissed Plaintiffs' federal ADA, IDEA and Rehabilitation Act claims. R. #23.
Complaint, R. #1, ¶ XX.
In order to establish an action brought under 42 U.S.C. § 1983, a plaintiff must establish (1) a deprivation of a right secured by federal law (2) that occurred under color of state law, and (3) was caused by a state actor. "A plaintiff may satisfy the "under color of state law" requirement of § 1983 by proving that the conduct causing the deprivation is "fairly attributable to the State." Defendants maintain that there is no evidence that St. Mary's is a state actor.
Victoria W. v J. Larpenter, 369 F.3d 475 (5th Cir. 2004).
Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753 (1982).
Plaintiffs assert that St. Mary's was acting under color of state law. A plaintiff can make such a showing by demonstrating that "the private citizen was a 'willful participant in a joint activity with the State or its agents.'" Plaintiffs rely on the rules and regulations imposed by the State as the basis to posit that St. Mary's is a "willful participant" with the State in providing residential opportunities for children with developmental disabilities. Plaintiffs submit as summary judgment evidence the Medicaid Application for Long Term Care Services submitted by St. Mary's to receive payment for KG's admission, a Request for Medical Eligibility Determination, a Notice of Medical Certification, and the Provider Manual for Intermediate Care Facility for the Developmentally Disabled which provides the rules and regulations for the care and supervision of residents at facilities. Plaintiffs argue that this evidence could show that the care for children with disabilities is an obligation of the State, is a program set up by the State, run by the State, policed by the State and funded by the State. Plaintiffs rely on Bowser v. Blair County Children and Youth Services, wherein the court found a private corporation (a county youth services department and a private family intervention crises service) was a state actor because its actions were conducted with the aid, direction, and encouragement of the State. "A State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State."
Priester v Lowndes Cnty., 354 F.3d 414, 420 (5th Cir.), cert. denied 543 U.S. 829, 125 S.Ct. 153 (2004).
346 F.Supp.2d 788 (E.D. Pa. 2004).
Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786 (1982).
A private school does not engage in state action despite the receipt of public funds, and a high degree of state regulation. There must be a nexus between the alleged unconstitutional activity and the purported federal and state governmental involvement. The court finds that Plaintiffs have failed to establish that St. Mary's is a state actor. Accordingly, the court will dismiss Plaintiffs' § 1983 claims.
Rendell-Baker v. Kohn, 457 U.S. 830, 840-842 102 S. Ct. 2764 (1982).
Blouin v. Loyola University, 506 F.2d 20 (5th Cir. 1975).
Prescription
Defendants maintain that any claims related to incidents that occurred prior to October 2, 2013 are prescribed. State law neglect and abuse claims have a one year prescriptive period. The one year liberative prescriptive period for delictual actions begins to run from the day the injury or damage is sustained. Defendants assert that Ms. Ball's general allegations are that KG was abused and/or neglected "[t]hrough his time at SMRTS and RTA." KG arrived at St. Mary's on June 10, 2013 and Ms. Ball removed him on October 3, 2013. The instant lawsuit was filed on October 2, 2014. Defendants argue that the one year prescriptive period started running from the day of each individual, discrete incident of abuse and/or neglect. Hence, Defendants maintain that any and all incidents of abuse and/or neglect, which occurred more than one (1) year before October 2, 2014, (or those alleged to have occurred between June 10, 2013 and October 2, 2013) are prescribed on the face of the Complaint.
La. Code Civ. P. 3492.
Id.
Complaint, ¶ ¶ XVI, XIX, XX. R. #1.
Plaintiffs argue that there is a disputed fact as to whether Ms. Ball had "constructive notice" of the claims before October 3, 2013 even if the injuries to KG were apparent at that time. Constructive notice means that prescription commences on the date the injured party discovers or should have discovered facts upon which his cause of action is based. Plaintiffs also argue that the Complaint for Damages is in the nature of a continuing tort. Under Louisiana law, when the action is a "continuing tort", the prescriptive period does not commence until the continuing tort ceases to occur.
Intracoastal Seafood, Inc. v. Scott, 556 So.2d 974 (La.1990); Lott v. Haley, 370 So.2d 521 (La.1979).
National Council on Compensation Ins. V. Quixx Temporary Serv. Inc., 664 So.2d 120 (La.App.4th Cir., 1995).
Defendants note that Ms. Ball started taking photographs of KG's claimed injuries as early as June and July of 2013; the court further notes that Ms. Ball has submitted these photographs as summary judgment evidence to establish her claims of abuse and/or neglect. For example, in addition to other photographs, Ms. Ball relies on a July 7, 2013 photograph wherein she claims "she noticed a very large string in [KG's] stool." She also bases her claims of neglect and/or abuse on an event in August of 2013 when KG was hospitalized for an abscess. "Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. . . .
Plaintiffs' opposition brief, p. 7.
Campo v. Correa,282 So.2d 502, 510-511 (La. 2002).
In Bustamento v. Tucker, the Louisiana Supreme explained:
607 So.2d 532 (La. 1992).
Indeed, it would be most difficult to pin-point the specific moment in time when such continuous conduct became sufficiently outrageous, and such continuing damage rose to the level of severity, to become actionable and thus to commence the running of prescription. Thus we find Tucker's alleged actions constitute a pattern of conduct analogous to the continuing trespass of nuisance situations in South Central Bell [418 So.2d 531 (La. 1982)], supra, and we find the practical rule adopted in those property damage cases that prescription does not run until continuous conduct is abated applies.
Defendants argue that the claimed improper act alleged against St. Mary's does not meet the test stated in Bustamento. Defendants remark that Ms. Ball documented (by photographs) specific moments in time when she became aware of instances of alleged tortious conduct. Thus, the continuing tort doctrine does not apply.
The Complaint for Damages alleges KG was the victim of mental, psychological, and physical abuse, by acts and/or omissions which were both intentional and the result of the fault/neglect of those persons legally responsible for his care, safety and protection.
Complaint, ¶ XVI, R. #1.
The Complaint further alleges that on October 3, 2013, Ms. Ball discovered that KG had been physically, psychologically and emotionally abused while he was in the care, custody and control of defendants; he had signs of injury including several cuts, bruises and wounds, he was significantly underweight, and he was pale; his overall health did not look good and he did not appear to be the same physically, emotionally and psychologically.
Id. ¶ XXI.
The Complaint further alleges that she was not aware that KG was the victim of ongoing mental, psychological and physical abuse prior to October 3, 2013. While the court finds that the photographs do depict signs of eczema, evidence of PICA, reveals cuts and bruises, and a continuous reduction in weight, given the history of KG's self-injurious behaviors and the fact that he was living apart from his mother and family, the court cannot say that each photograph was enough to put Ms. Ball on notice of alleged abuse and/or neglect. Thus, we find that there is a genuine issue of fact as to the commencement of the prescriptive period.
Id. ¶ XXII.
Lack of factual or legal basis
Defendants maintain that even if Plaintiffs' tort claims are not prescribed, they fail as a matter of law. To prove a negligence claim, Plaintiffs must establish that Defendants (1) had a duty to conform its conduct to a specific standard, (2) failed to conform its conduct to the appropriate standard, (3) substandard conduct was a cause-in-fact of KG's alleged injuries, (4) was a legal cause of KG's injuries, and (5) actual damages.
Roberts v. Benoit, 605 So.2d 1032 (1991).
Defendants maintain that Plaintiffs cannot prove that St. Mary's breached its duty of care owed to KG, or that the alleged conduct was the cause-in-fact or legal cause of KG's purported injuries.
A group home, such as St. Mary's has a duty to exercise reasonable care to protect its residents based upon each resident's individual needs while the resident is at the facility. Thus, St. Mary's had a duty to exercise reasonable care, taking into consideration KG's individual mental and physical disabilities. St. Mary's acknowledges that it had a duty to exercise reasonable care, taking into consideration KG's individual mental and physical disabilities. St. Mary's argues that at no time did it have a duty to exercise a level of care which would have totally prevented KG from engaging in behaviors and corresponding consequences impossible to control regardless of the setting or number of persons supervising KG.
Ward v. Isle of Capri Casinos, Inc., 2005 WL 1994516, *3 (W.D. La. Aug. 17, 2005).
See Daniels v. Conn., 382 So.2d 945 (La.1980).
St. Mary's notes that Ms. Ball acknowledged that St. Mary's never told her that it could or would prevent KG from self-injury, nor did St. Mary's tell Ms. Ball that it would provide an employee to stand or sit next to KG 24 hours a day, 7 days a week to prevent injuries, scratches or SIBs. Ms. Ball has presented pictures of KG she took on five (5) separate occasions before removing him from the facility on October 3, 2013. The court has reviewed the photographs which reveal some bruising, what appears to be eczema as well as a gradual weight loss.
St. Mary's exhibit A, Ball depo. p. 150.
Id. p. 165.
St. Mary's submits the deposition testimony of Ms. McNeeley who stated that "based on what we saw, we could no - - we couldn't say yes he's been abused or he had been neglected." Ms. McNeeley also testified that if it were up to her, she would not have submitted the child abuse form, but as a "mandatory reporter", she was required to do so even if there was no actual evidence of abuse. Ms. McNeeley further testified that the bruising she observed occurred in front of her when KG threw himself against a cinder block wall and onto the floor. She also testified that she and Nurse Fuqua had observed bruising on KG which was the result of him throwing himself into a wall and fighting against being restrained while at RTA. Ms. McNeeley testified that KG was non-compliant, became agitated, threw himself across his desk: KG's aggressive behavior was consistent with the bruising observed by Ms. McNeeley and Nurse Fuqua.
St. Mary's exhibit B, McNeeley depo. pp. 57-58, 60, 99, 100; St. Mary's exhibit L, Child Abuse/Neglect Reporting Form.
St. Mary's exhibit B, McNeeley depo, pp. 94-95; La. Child. Code art. 603(17).
St. Mary's exhibit B, McNeeley depo. pp. 64-65.
Id. p. 66.
Id. pp. 68-69.
After Ms. Ball removed KG from St. Mary's, she reported possible abuse and neglect of KG to the Alexandria Police Department ("APD"). St. Mary's remarks that as of this date (over 3 ½ years later), the APD has never found or substantiated any of Ms. Ball's claims.
Ms. Ball complains that St. Mary's medically neglected KG by failing to control his eczema and constipation and failing to properly treat a couple of wounds and an infection. Ms. Ball also complains of KG's weight loss.
St. Mary's has submitted KG's medical records prior to, during and after his admission to St. Mary's. What is abundantly clear to this court, is that KG suffered serious constipation, bruising, cuts, and eczema before and after his stay at St. Mary's. Some of the medical records reveal an infection during his stay but while he was visiting in his mother's home. Even though KG did have weight loss, he did not fall below his ideal weight range. The court also notes that Ms. Ball testified that she frequently fed KG snacks during the day as a means of calming him down; this was not a regiment utilized by St. Mary's.
KG's weight decreased from 131 to 120 pounds. St. Mary's exhibit A-42; St. Mary's exhibit A, Ball depo. p. 223.
Dr. Lisa Emrick testified that it was normal for this type of weight loss of an in-patient resident in the first several months. Dr. Emrick explained that "[s]uch weight loss is attributed to many factors, including but not limited to, decreased appetite secondary to change, refusal to eat because of restricted tastes, medications, and the well-balanced, and structured meals that the residents receive." Significantly, there has been no summary judgment evidence submitted that establishes that KG was malnourished and/or underfed.
St. Mary's exhibit K, Dr. Emrick Expert Report, p. 4.
Id.
Dr. Patterson, KG's treating physician before he entered St. Mary's, treated KG for a persistent rash for several months and noted no improvement. Dr. Patterson treated KG approximately one month after his admission to St. Mary's for bowel issues. Dr. Patterson testified that she had no first-hand knowledge of whether or not nurses at St. Mary's were dispensing Miralax to KG. Dr. Patterson explained that constipation is a common problem in autistic individuals because of poor diets and their medication.
St. Mary's exhibit C, Patterson depo. p. 17-20.
Id. p. 21.
Id. p. 37.
Id. pp. 10, 37-38.
Dr. Patterson testified that staph infections are not uncommon for people living in a group home setting like St. Mary's, and that it is a very common problem for people in Livingston Parish. Dr. Patterson treated KG on October 29, 2013, less than a month after Ms. Ball removed KG from St. Mary's, for complaints of a boil and continued constipation. Dr. Patterson noted it was not unusual for KG to get a boil; at that same visit, Dr. Patterson also diagnosed KG for eczema and referred him to a gastrointestinal specialist for his constipation issues. In her notes, Dr. Patterson remarked that KG's contraction of a boil while in Ms. Ball's care did not indicate that Ms. Ball neglected KG in anyway.
Id. p. 29.
Id. p. 33.
Id. pp. 31-33.
Id.
Id.
Id.
Dr. Patterson treated and physically examined KG during the time he was at St. Mary's. Dr. Patterson opined that the nurses and employees at St. Mary's were helpful and responsive to KG's various medical issues.
Id. p. 39.
Ms. Ball has presented no evidence that anyone at St. Mary's sexually, physically or emotionally abused KG, or neglected him. Accordingly, the court finds that Plaintiffs' tort claims of abuse and neglect fail as a matter of law as Plaintiffs have failed to submit summary judgment evidence to create a genuine issue of material fact for trial.
LeJeune damages
Ms. Ball asserts a loss of consortium or "LeJeune" claim against Defendants on her behalf and on behalf of KG's two minor siblings. Defendants maintain that Plaintiffs have failed to produce any evidence to support the loss of consortium claims and furthermore, that KG's problem behaviors were the same prior to and after his admission to St. Mary's. The court finds that Plaintiffs have failed to submit summary judgment evidence to create a genuine issue of material fact for trial as to Plaintiffs' loss of consortium/LeJeune damages.
Breach of contract
Plaintiffs rely on the evidence submitted as to their claims of abuse and/or neglect. Specifically, Plaintiffs complain of the lack of a FBA or a BIP and Dr. Shreiner's opinion that because of KG's maladaptive behavior, he would "... require constant supervision and the development and consistent implementation of a behavioral support plan." However, there is no testimony or evidence that St. Mary's lack of a FBA or a BIP would have changed his maladaptive self-injurious behaviors. In fact, there is evidence that prior schools that had a BIP had been unsuccessful in decreasing and/or controlling KG's maladaptive behaviors. More significantly, Plaintiffs have failed to allege the exact contract terms or provisions relied upon for the breach of contract claim. Accordingly, the court finds that Plaintiffs have failed to submit evidence to create a genuine issue of material fact as to the breach of contract claims.
Plaintiff's exhibit #3, Behavioral Health Triage Report.
Functional Behavior Assessment,
Behavioral Implementation Plan.
Fraud
To the extent Plaintiffs have attempted to assert any claims of fraud, the Complaint has failed to allege with particularity any facts to establish this claim, thus it will be dismissed with prejudice.
Rapides Parish School Board ("RPSB")
Plaintiffs have sued RPSB allegedly because it did not report or turn St. Mary's in prior to when they did, and KG "[m]ay not have suffered as much neglect or abuse if they would have stepped in." KG started school at the Rapides Training Academy ("RTA") on August 16, 2013 and was withdrawn on October 3, 2016. Regarding the allegations in the Complaint, Ms. Ball testified that she was not aware of any incidents that happened at RTA.
RPSB exhibit 1, Ball depo. p. 29.
Id. p. 30. --------
For the reasons discussed hereinabove, Plaintiffs' claims against the RPSB for federal due process and equal protection, abuse and/or neglect, LeJeune, breach of contract, and fraud will be dismissed. Furthermore, Plaintiffs have failed to submit any summary judgment evidence to create a genuine issue of material fact for trial that RTA failed to report child abuse and/or neglect. Accordingly, all claims made against RPSB will be dismissed with prejudice.
CONCLUSION
For the reasons set forth above, the motion for summary judgment filed by St. Mary's Training School, Karen Coor, Leslie Draper, Anita Moore, Heather Nida, Stephanie Warden, Somona Allen, Christi Guillot, Mavis Champagne and Tony Vets will be GRANTED in its entirety dismissing with prejudice Plaintiffs' claims against these Defendants. The Motion for Summary Judgment" filed by the Rapides Parish School Board will be GRANTED in its entirety dismissing with prejudice Plaintiffs' claims against this Defendant.
THUS DONE AND SIGNED in Alexandria, Louisiana on this 28th day of June, 2017.
/s/ _________
JAMES T. TRIMBLE, JR.
UNITED STATES DISTRICT COURT