Opinion
NO: 4:19CV191
2021-02-22
Caleb RODGERS, Plaintiff v. Robert SMART, et al., Defendants
Brandon Flechas, the Stroud Law Firm PC, Southaven, MS, for Plaintiff. Daniel Ellis Morris, Daniel E. Morris Law Firm, PLLC, Baton Rouge, LA, for Defendant Robert Smart. Arnulfo Ursua Luciano, Daniel J. Griffith, Jacks Griffith Luciano, P.A., Cleveland, MS, Steven Lloyd Lacey, Steven L. Lacey Attorney at Law, PLLC, Madison, MS, Allison P. Fry, Sherman & Lacey, LLP, Ridgeland, MS, Brett R. Koehn, Koehn Law Firm, PLLC, Brandon, MS, for Defendant Cleveland School District.
Brandon Flechas, the Stroud Law Firm PC, Southaven, MS, for Plaintiff.
Daniel Ellis Morris, Daniel E. Morris Law Firm, PLLC, Baton Rouge, LA, for Defendant Robert Smart.
Arnulfo Ursua Luciano, Daniel J. Griffith, Jacks Griffith Luciano, P.A., Cleveland, MS, Steven Lloyd Lacey, Steven L. Lacey Attorney at Law, PLLC, Madison, MS, Allison P. Fry, Sherman & Lacey, LLP, Ridgeland, MS, Brett R. Koehn, Koehn Law Firm, PLLC, Brandon, MS, for Defendant Cleveland School District.
ORDER
Michael P. Mills, UNITED STATES DISTRICT JUDGE This cause comes before the Court on Defendant Cleveland School District's ("CSD") motions to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) [27 & 52]. The Court has reviewed the briefs and submissions and is prepared to rule.
Factual Background
On November 22, 2019, Plaintiff Caleb Rodgers filed a complaint in the Circuit Court of Bolivar County, Mississippi, naming Robert Smart and CSD as defendants. Rodgers alleges that Smart, his former teacher, committed various acts of sexual abuse against him in 2015. For example, the complaint alleges that Smart sent Rodgers sexually explicit text messages, performed oral sex on Rodgers, forced Rodgers to perform oral sex on him, and paid Rodgers not to tell anyone about the abuse.
In his complaint, Rodgers first asserts federal claims under 42 U.S.C. § 1983, in which he contends that Smart violated his "clearly established right under the Fourteenth Amendment to be free from damage to and invasion of his bodily integrity in the form of physical sexual abuse." [2]. He further alleges that the failure of CSD administrators "to properly investigate, train, and/or supervise, and the retention of Smart in his position as teacher, exhibited deliberate indifference to Rodgers's right to be free from violation of his bodily integrity form [sic] physical, sexual abuse." [2].
In addition to his federal claims, Rodgers asserts state law claims in which he contends that Smart committed two intentional torts against him, namely assault and battery. He also asserts state law tort claims against CSD under the Mississippi Tort Claims Act ("MTCA"), alleging that:
32. Cleveland School District, by and through its administration, allowed an unreasonably dangerous condition to exist on its premises in allowing Smart, an employee, to cover the windows to his classroom, thereby allowing him to provide himself cover to sexually abuse students on school property.
33. Cleveland School District knew, or with the exercise of reasonable care, should have known, of Smart's proclivities for sexual abuse toward minors, and Cleveland School District failed to take any reasonable steps to prevent Smart from committing sexual abuse against minors on Cleveland School District Property.
34. Cleveland School District knew, or with the exercise of reasonable care, should have known, of Smart's proclivities toward minors and unfitness for his position, and Cleveland School District was negligent in its hiring, retention, training, and supervision of Defendant Smart. [2].
Procedural History
A month after the complaint was filed, CSD removed this case to federal court, asserting that Rodgers' § 1983 claims gave rise to federal question jurisdiction. See 28 U.S.C. § 1331. CSD then filed the first of the two pending motions to dismiss for failure to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). In response, Rodgers concedes that CSD's motion to dismiss should be granted as to his § 1983 claims, but he argues that his MTCA claims against CSD should survive. Before this Court could rule on CSD's first motion to dismiss, it filed a second such motion, in which it asserts an additional argument that Rodgers's MTCA claims are time-barred. This court will presently address each of the pending motions to dismiss filed by CSD.
Discussion
I. 28 U.S.C. § 1983 Claim
In addressing the dismissal issues in this case, this court initially notes that CSD, but not Smart, has filed motions to dismiss. This means, of course, that the federal and state claims asserted by plaintiff against Smart are not impacted by this court's order today. Once again, Rodgers concedes that his federal § 1983 claims against CSD should be dismissed, which leaves his state law MTCA claims as the sole ones asserted against this defendant. This has an important procedural effect in this case. Namely, the fact that the state law claims against CSD are asserted under the MTCA means that a bench, not jury, trial will be held as to these claims. See Miss. Code Ann. § 11-46-13(1) ("The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter."). See also Kirk v. Crump , 886 So.2d 741 (Miss. Ct. App. 2004) (holding that claims of criminal assault outside the scope of the MTCA should be decided by a jury, while claims asserted under the MTCA should be decided in a bench trial.) See also Gibson v. Estes , 2007 WL 1459307, at *1 (N.D. Miss. 2007) ; Taylor-Travis v. Jackson State Univ. , 2017 WL 6604567, at *10 (S.D. Miss. 2017) (applying the bench trial requirement in federal court).
It is thus clear that this court will be serving as the trier of fact of the MTCA claims against CSD, and it is with awareness of this future role that it turns to the motion to dismiss. In its motion, CSD notes that Mississippi Code Annotated § 11-46-5(2) provides that "[f]or the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations." Miss. Code Ann. § 11-46-5(2).
CSD argues based on this provision that, to the extent that Rodgers attempts to hold it vicariously liable for the sexual assaults committed by Smart, then such liability is precluded by § 11-46-5(2). This court agrees, and it will take care, in performing its role as trier of fact, not to assign vicarious liability against CSD merely because one of its employees (allegedly) committed a sexual assault against plaintiff. In the court's view, such an assault constitutes a "criminal offense" outside the scope of Smart's employment, and it thus seems clear that CSD may not be held vicariously liable for it under the MTCA. While this court thus agrees that CSD is entitled to dismissal of the state law claims against it to this limited extent, it believes that Mississippi law is considerably less clear regarding the bases for dismissal which CSD asserts regarding its own alleged acts and omissions in this case.
CSD argues that it is entitled to dismissal of the negligence claims against it based on 1) the MTCA's discretionary functions exception set forth in § 11-46-9(1)(d) and 2) the one-year statute of limitations set forth in § 11-46-11. This court will consider these arguments in turn. As to CSD's first argument, this court initially observes that the MTCA's discretionary function exception has been interpreted and applied by the Mississippi Supreme Court in dramatically different manners in various decisions. This has, in the court's view, left the law in this area one of the murkiest in all of Mississippi's civil jurisprudence, which makes CSD's efforts to seek dismissal on this basis problematic. This court will briefly discuss what is merely a sampling of the conflicting Mississippi Supreme Court case law which lead it to this conclusion.
In the 1999 decision of L.W. v. McComb Separate Mun. Sch. Dist. , 754 So.2d 1136, 1143 (Miss. 1999), the Supreme Court read the discretionary functions exception in § 11-46-9(1)(d) in conjunction with a separate MTCA exception set forth in § 11-46-9(1)(b) and interpreted the latter as imposing a duty of "reasonable care" in order for the discretionary function exception to apply. This discretionary function exception set forth in § 11-46-9(1)(d) provides that:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.
Section 11-46-9(1)(b), in turn, provides that:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid.
These appear to be entirely separate exceptions to liability which are written in the disjunctive. As the Supreme Court itself later recognized, this raises questions regarding L.W. 's approach of using § 11-46-9(1)(b)'s provisions as a generalized duty on the part of state and local defendants to exercise "reasonable care" in various contexts, including as it relates to the application of the discretionary functions exception in § 11-46-9(1)(d).
In the 2004 decision of Collins v. Tallahatchie County , the Supreme Court wrote to correct "an apparent misunderstanding" and "erroneous proposition that one must use ordinary care in performing a discretionary function to retain immunity." The Supreme Court wrote in Collins , that, contrary to L.W. and its progeny, § 11-46-9(1)(b) and § 11-46-9(1)(d) are written in the disjunctive and, accordingly, if a defendant establishes that the requirements of the discretionary function exception of § 11-46-9(1)(d) are met, then immunity exists, regardless of whether "ordinary care" was used in the performance of a statutory requirement under § 11-46-9(1)(b).
The Mississippi Supreme Court specifically overruled L.W. in 2012, writing that:
Today, we state that, to the extent L.W. [and its progeny] may be read to condone an interplay between Section 11–46–9(1)(b) and Section 11–46–9(1)(d) to determine whether the discretionary conduct of the governmental entity is exempt from liability by applying the ordinary-care standard, these cases, and any other cases which stand for this proposition, are expressly overruled.
Mississippi Transp. Comm'n v. Montgomery , 80 So. 3d 789, 797 (Miss. 2012).
In spite of L.W. 's overruling, its "ordinary care" standard has continued to find application as a generalized duty, often on the grounds that L.W. was, supposedly, overruled "on other grounds." In a 2019 decision, for example, the Mississippi Supreme Court wrote that:
[P]ublic schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment. Henderson ex rel. Henderson v. Simpson Cty. Pub. Sch. Dist. , 847 So.2d 856, 857 (Miss. 2003) quoting L.W. v. McComb Separate Mun. Sch. Dist. , 754 So.2d 1136, 1143 (Miss. 1999), overruled on other grounds by Miss. Transp. Comm'n v. Montgomery , 80 So.3d 789, 797 (Miss. 2012).
Chaffee on behalf of Latham v. Jackson Pub. Sch. Dist. , 270 So. 3d 905, 908 (Miss. 2019) (emphasis added). Arguably, however, the "ordinary care" standard did originate from the portion of L.W. 's holding which was overruled in Montgomery , namely using § 11–46–9(1)(b)'s "ordinary care" requirement to impose a generalized duty of care upon defendants, instead of as a pre-requisite for the application of that one particular exception to the waiver of immunity in the MTCA.
This court notes that Chaffee was not a discretionary functions act case, since the defense was not raised there.
The Supreme Court in L.W. made it clear that § 11–46–9(1)(b) was the origin for its "ordinary care" requirement, quoting its language and writing that "[u]nder this statute as long as ordinary care is used while performing a statutory duty, immunity exists." L.W. , 754 So. 2d at 1142.
This court notes that, in its motion to dismiss, defendant relies upon City of Clinton v. Tornes , 252 So. 3d 34, 39 (Miss. 2018), which specifically cites Montgomery and thus represents one of the more conservative discretionary function exception cases. This court is well aware, however, of the fact that there are more liberal discretionary function exception cases which purport to be good law, and it is not prepared, at this juncture, to agree with defendant that any and all decisions relating to employee hiring and supervision, no matter the context, are discretionary.
Conflicting Supreme Court case law aside, there are factual aspects specific to this case which render dismissal on the basis of the discretionary functions exception problematic. One such aspect arises from the fact that plaintiff alleges that:
25. Upon information and belief, then-superintendent, Jacquelyn Thigpen and Smart were friends, and, upon hiring Smart, Thigpen did not conduct a thorough background investigation, which would have revealed that Smart had been accused of inappropriate behavior towards students prior to his being hired by the CSD.
[Complaint at 4]. In the court's view, allegations that Thigpen acted out of personal bias make it more difficult for CSD to rely upon the discretionary functions exception, which appears to have been written to address judgment calls which are made by a state or local employee in good faith. In the court's view, it is more difficult for a defendant to rely upon this exception if the evidence demonstrates that one of its employees acted out of personal bias or favoritism. Moreover, determining whether a particular employee did, in fact, act out of bias or favoritism is best done at trial, where this court can assess the credibility of the witnesses.
Allegations of favoritism aside, this court believes that the sheer outrageousness of Smart's alleged misconduct makes the discretionary functions exception a problematic basis for dismissal in this case. In so stating, this court observes that a school official's "discretion" is quite limited as it relates to tolerating a teacher's sexual assault of a minor on school grounds. A school official obviously lacks the discretion to knowingly tolerate such behavior, and while this court frankly doubts that plaintiff will be able to present proof of such outright knowledge on the part of such officials in this case, there are lesser forms of potential negligence in this context which might, at least potentially, give rise to liability. Given the seriousness of the misconduct Smart is alleged to have committed in this case, this court would first like to see plaintiff's proof regarding his hiring and supervision before deciding whether the discretionary function exception applies in this case. This court additionally notes that, in his complaint, plaintiff also alleges that CSD negligently allowed Smart to cover the windows of his classroom, thus facilitating the sexual assaults against him. While it is unclear to this court how strong plaintiff's proof in this context will prove to be, this allegation does take this case outside the scope of a pure negligent hiring or training case, and it makes it even less inclined to decide these issues before trial.
As quoted above, the Mississippi Supreme Court wrote in Chaffee that "public schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment." Id. at 908. While Chaffee was not a discretionary functions case, the fact that the Supreme Court has written so strongly in favor of requiring schools to provide a safe environment for students leads this court to suspect that, if a plaintiff presented truly compelling evidence of negligence by a school district in preventing a sexual assault on school grounds, then the Supreme Court would be less likely to find that the discretionary functions exception were applicable. Indeed, this court's general impression, having read many Mississippi Supreme Court decisions in the MTCA context, is that the Court tends to chafe against the most legalistic defenses set forth in the Act in cases involving compelling facts which seem to cry out for recovery. This is certainly understandable on a human level, and it makes this court more inclined to first hear what evidence of negligence plaintiff might present at trial before addressing the more legalistic defenses upon which CSD relies.
This court has similar views regarding the other defense raised by CSD, arising from the one-year statute of limitations set forth in the MTCA. Generally, the minor's savings clause set forth in the MTCA applies to claims brought under the Act. See Miss. Code Ann. § 11-46-11(4). This clause provides that:
(4) From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.
In a 2018 decision, the Mississippi Court of Appeals provided its interpretation of this statutory provision, writing that:
[W]e find that the minors savings clause found under section 11–49–11(4) is the controlling provision in Jane's claim because the purpose of the statute is to "protect the legal rights of those who are unable to assert their own rights due to disability." Hays v. Lafayette Cty. Sch. Dist. , 759 So.2d 1144, 1147 (Miss. 1999). As a result, Jane's claim is tolled under section 11–46–11(4) until she reaches the age of majority or an interested
party actually files a complaint on her behalf.
Doe v. Holmes Cty. Sch. Dist. , 246 So. 3d 920, 923 (Miss. Ct. App. 2018).
The Doe decision is consistent with prior Mississippi Supreme Court decisions, including, Lee v. Thompson , where the Mississippi Supreme Court ruled that:
No doubt, Emily, because of her disability of minority, was protected under both Miss. Code Ann. §§ 11-46-11(4) & 15-1-59 until the suit was initially filed in her behalf. That action, however, commenced the running of the applicable statute(s) of limitations concerning subsequently filed suits arising from the same cause of action.
859 So. 2d 981, 990 (Miss. 2003). CSD also relies upon language in a recent Mississippi Court of Appeals decision which held that:
In the instant case, the protection afforded under the minor savings clause were removed upon the appointment of Grantham as the guardian. In Lee v. Thompson , 859 So. 2d 981 (Miss. 2003), our Supreme Court affirmed that once the minority is removed, the minor is no longer protected and the applicable statutory limitations period is no longer tolled: "Emily was no longer protected by the minor savings clause." Id. at 990. Further, our Supreme Court stated that because "the amended complaint was filed after the statute of limitations had run, the children's claims, like the estate's and their mother's, are barred by the statute of limitations." Id . at 989 (¶20) (quoting Curry v. Turner , 832 So. 2d 508 (Miss. 2002), overruled by Pioneer Cmty. Hosp. of Newton v. Roberts , 214 So. 3d 259, 265 (Miss. 2017) ). Once a minor has "a person in esse," the person is no longer protected by the minor-savings clause because, for purposes of litigation interests, the person is no longer a minor because someone has stepped into his or her shoes. Id . at 989-90
B.G. by & Through Grantham v. Banks , 301 So. 3d 55, 59–60 (Miss. Ct. App. 2020), reh'g denied (July 28, 2020).
In seeking dismissal, CSD also relies upon a Mississippi Supreme Court holding that when a plaintiff voluntarily dismisses his case, there is no tolling of the statute of limitations for the time during which the suit was pending. Specifically, the Supreme Court has written that:
This Court held long ago, however, that the dismissal of a suit without prejudice does not confer any new right or advantage on the plaintiff, and hence it will not have the effect of excepting from the period prescribed by the statute of limitations, the time during which that suit was pending. In other words, when a suit is dismissed without prejudice, the statute of limitations is deemed unaffected by the filing of the suit.
Clark Sand Co. v. Kelly , 60 So. 3d 149, 161-62 (Miss. 2011).
CSD seizes upon the "or an interested party actually filed a complaint on her behalf" language in Doe , and it emphasizes that, in this case, plaintiff previously filed an action in state court against Smart individually, which it later voluntarily dismissed. Specifically, CSD argues that:
Once Plaintiff filed the first suit, 17-025, or at least as early as the amended complaint in the first suit was filed naming Brown as mother, next friend, and guardian of the Plaintiff, two legal effects immediately occurred: (1) the minor's savings clause was no longer operant (at that point in time, the Plaintiff stood as any other plaintiff, subject to all relevant and applicable laws and Rules); and (2) the point in time in which the statute of limitations began to run was established.
Applying Mississippi precedents above to this case, Plaintiff's one-year limitation
period for claims against CSD commenced on, at the latest, July 27, 2017, at the time of filing of the amended complaint in 17-025. Also applying Mississippi precedents above, a voluntary dismissal without prejudice does not toll the running of that limitations period. Therefore, once Plaintiff voluntarily dismissed his suit in 17-025, the intervening period does not toll the limitations period and it therefore expired on July 27, 2018.
[Brief at 5].
For his part, however, plaintiff argues, with considerable force, that Mississippi law in this context is more complex and ambiguous than defendant's briefing suggests. Specifically, plaintiff writes that:
Lee depended heavily upon Curry v. Turner , 832 So. 2d 508 (Miss. 2002), overruled by in part, Pioneer Community Hospital of Newton v. Roberts , 214 So. 3d 259, 261 (Miss. 2017). At the heart of the holdings in Lee and Curry is a belief that "the wrongful-death statute and minors savings statute are at irreconcilable odds with one another where there exists a person qualified under the wrongful death statute to bring suit." Curry , 832 So. 2d at 517 ; Lee , 859 So. 2d at 989 (Quoting Curry , 832 So. 2d at 517 ). This is due mainly to the wrongful death statute's mandate that there be only one suit for a wrongful death and the possibility of multiple suits for multiple claimants if the minor savings statute applies. Pioneer Community Hospital , 214 So. 3d at 264 (Quoting Curry , 832 So. 2d at 516 ). While, Lee and Curry and their respective analyses are inapplicable to this case, since this is not a wrongful death case, the case overruling Curry's concerns does in fact provide guidance here.
In the Pioneer Community Hospital case, the Mississippi Supreme Court specifically overruled Curry for its holding that "the mere existence of someone qualified to bring a wrongful-death suit created an irreconcilable conflict between [the wrongful death statute] and [the minor savings statute] and precluded the application of the latter statute." 214 So. 3d at 261 (Emphasis in original). However, it is the case's next sentence and its accompanying footnote that are most instructive here:
Instead, we hold that only when someone who is qualified to bring a wrongful-death suit actually files a wrongful-death suit on the minor beneficiaries' behalf will the minors savings clause not apply, because, once the suit is filed, the running of the statute of limitations is immaterial. That is not to say, however, that the minors savings clause disappears. Should the suit be dismissed for reasons other than on the merits, the minor's right to refile the suit remains protected by the savings clause.
Id. at n.3 (Emphasis in original).
Therefore, even in the wrongful death context, the Mississippi Supreme Court has made crystal clear that just because a suit could have been brought on a minor's behalf does not destroy the minor savings clause for the minor, and even in cases where a suit actually has been brought, if that suit was dismissed for some reason other than on the merits, then the minor's savings clause is still intact, and the minor may refile.
[Plaintiff's brief at 4-5].
Plaintiff argues that, aside from the fact that this is not a wrongful death case, another distinguishing factor is that, in this case, his initial lawsuit was filed against Smart, but not CSD. Specifically, plaintiff writes that:
In light of Pioneer , it should be clear that, because the 2017 suit resulted in a
voluntary dismissal without prejudice, Caleb Rodgers's right to refile his suit remained intact. This is even clearer when considering suit was never filed against Cleveland School District at any time before the instant suit, and the claims against Cleveland School District are based upon different and separate causes of action from those brought in the 2017 suit. There were no MTCA claims brought in the 2017 suit. The MTCA has its own causes of action and carries its own minor savings clause and does not depend upon the general minor savings statute. See Mississippi Code Annotated § 11-46-11(4).
[Brief at 6]. Plaintiff relies heavily upon the Supreme Court's decision in Pioneer , in particular its statement that "[s]hould the suit be dismissed for reasons other than on the merits, the minor's right to refile the suit remains protected by the savings clause." Id. at n.3 Plaintiff emphasizes that the earlier voluntary dismissal in state court was not on its merits, and he argues that Pioneer 's language takes precedence over the broader language in the Court of Appeals' decision in Banks , since the Court of Appeals may not overrule a decision of the Mississippi Supreme Court.
In its reply brief, CSD appears to recognize that the Supreme Court's language in Pioneer is problematic for its position, and it relies upon more recent Court of Appeals authority in arguing that its interpretation of Mississippi law is the correct one. Specifically, CSD argues that:
Plaintiff cites a footnote in Pioneer Community Hospital for the proposition that the minor savings clause stays intact when a suit has been dismissed for reasons other than on the merits. CM/ECF No. 57 at pp. 4-5. Notably, however, the Mississippi Court of Appeals has three times since Pioneer reiterated the exact principle CSD is arguing: that a minor's disability is removed when a person qualified to do so actually brings suit on the minor's behalf.
[Reply brief at 2].
While this court agrees with CSD that the Mississippi Court of Appeals' precedent in this context is helpful to it, it must confront the fact that, as a Supreme Court decision, Pioneer carries much more weight. Moreover, this court's confidence in CSD's position on this issue is not enhanced by the fact that it engages in speculation regarding the Supreme Court's intentions in writing the unhelpful words in Pioneer . Specifically, CSD writes that:
Additionally, Plaintiff cannot know to what extent the Mississippi Supreme Court in Pioneer intended its footnote to apply only to wrongful death actions, given that the wrongful death statutes specifically addresses the issue of not barring subsequent suits unless the former suit by a named representative be decided on the merits. * * * The Court in Pioneer very likely included footnote 3 so as to not to create a conflict with Miss. Code Ann. § 11-7-13. In other words, had the Court in Pioneer not included its explanation stated in footnote 3 of its opinion, confusion may arise as to the operation of the one suit rule in Miss. Code Ann. § 11-7-13.
[Reply brief at 4]. While CSD's interpretation of what the Supreme Court subjectively intended in Pioneer may (or may not) be correct, it is problematic when a litigant seeks to have this court apply not the words that the Supreme Court actually wrote , but the litigant's speculation regarding what it meant to say. In this vein, this court notes that nothing in footnote 3 of Pioneer limits the Supreme Court's words to wrongful death cases, even if such was the Court's intent (which is very much unclear). Having considered the arguments of both sides in this context, this court's impression is that the current state of Mississippi law in this context is exceedingly unclear, and it further seems possible that the fact that plaintiff previously filed suit not against CSD, but Smart alone, would be considered a distinguishing factor here, even if defendant's general interpretation of Mississippi law is correct. Indeed, it seems possible that, given the policy considerations behind the minor's savings provision, the Mississippi Supreme Court would choose to give plaintiff the benefit of the doubt in this context. The truth is that this court simply does not know how the Mississippi Supreme Court would resolve this issue, and it does not even have a particularly well-informed guess in this regard.
As the ultimate factfinder regarding the MTCA claims in this case, this court prefers to decide these issues on the clearest legal basis, namely by first ascertaining whether plaintiff has sufficiently persuasive proof that an act or omission of CSD caused the harm he suffered. This court prefers to do this at trial, where it can evaluate the credibility of the witnesses and where it is not limited by the restrictive standards applicable to motions to dismiss and/or summary judgment. While CSD will, no doubt, take issue with being required to defend against these issues at trial, this court notes that it does not appear to dispute that plaintiff suffered sexual abuse at the hands of one of its teachers in his classroom. This is a difficult set of facts for CSD to completely wash its hands of, and this makes this court more inclined to do what is necessary to get to the bottom of these issues and to decide them on the clearest legal basis possible.
This also raises the question of whether CSD should be willing to accept some financial responsibility for the actions of its teacher on school grounds, even if it has potentially strong legal defenses in this context.
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At the same time, this court cautions plaintiff that, while it finds the allegations in this case to be quite concerning, it intends to fully apply the MTCA's scheme of not holding state and local defendants vicariously liable for conduct outside the scope of an employee's employment. In other words, this court will not hold CSD liable for Smart's alleged actions in sexually assaulting plaintiff, absent persuasive evidence that its own negligence was a proximate cause of this assault. In his complaint, plaintiff makes rather aggressive allegations that CSD "knew or with the exercise of reasonable care, should have known of Smart's proclivities for sexual abuse towards minors, and [CSD] failed to take any reasonable steps to prevent Smart from committing sexual abuse against minors on CSD minors." [Complaint at 5].
This court is interested in learning whether plaintiff will be able to support this very serious allegation with proof at trial, and it agrees with CSD that the complaint is rather sparse in specific allegations in this regard. This court reiterates that, in addition to his allegations of negligent hiring, plaintiff also alleges that CSD negligently allowed Smart to cover the windows of his classroom, thus facilitating the sexual assaults. While this court regards this as a coherent theory of negligence, it does not strike it as necessarily being a strong one, and, as is usually the case, the devil will lie in the details in this context.
In sum, this court concludes that it should decide the legal issues raised by CSD after it has considered the testimony of the witnesses at the MTCA bench trial, which will likely occur after the proceedings against Smart have been brought to a conclusion. Primarily for this reason, this court will partially grant dismissal on the grounds previously stated, but it will otherwise deny CSD's motion to dismiss the claims against it.
It is therefore ordered that CSD's motions to dismiss [27-1, 52-1] are GRANTED IN PART and DENIED IN PART .
SO ORDERED , this the 22nd day of February, 2021.