# Varney v. Richards > Superior Court of Maine · July 21, 2016 URL: https://www.frixlaw.com/law-library/cases/10811026 ## Case - **Court:** Superior Court of Maine - **Decided:** July 21, 2016 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** William R. Anderson - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10811026 ## Opinion text STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL DIVISION DOCKET NO. CV-14-164 ) TERRY ANO KELLY VARNEY, ) individually and as parents and next friend of ) R.V., ) Plaintiffs, ) ) v. ) ) DENISE RICHARDS, individually and in ) ORDER ON DEFENDANTS' her official capacity as Educational ) MOTION FOR SUMMARY Technician employed by Regional School ) ,JUDGMJ1:NT AND DEFENDANT Unit# 67, ) HAMLINtS MOTION FOR ) JUDGMENT ON THE PLJ,:ADINGS DENISE HAMLIN, individually as the ) former Superintendent of Regiom1l School ) Unit #67, ) ) and ) ) KEITH LASER, in his official cnpacity as ) successor to DENISE I IAMLIN as the ) Superintendent of Regional School Unit # ) 67, ) ) Defendants. ) Before the Court is Defendants Denise Richards, Denise I lamlin, and Keith Laser's motion for summary judgment and Defendmll Denise IIamlin's motion for judgment on the pleadings in. a case alleging violations of the Maine Civil rughts Acl, 5 M.R.S. § 4681 et. seq., intentional infliction of emotional distress, negligent infliction of emotional distress, and assault and hattel'y, tiled on October 21, 2015. This case was originally filed in the District of Maine, whcl'c two counts were dismissed and the remaining counts were remanded to this Courl. After considernlion and for the reasons stated below, Defendunls' motion for smnma1y judgment is GRANTED as lo cmm(s JI, JV, V, VI, and VIII. Defendant Hamlin's motion for judgment on the pleadings is GRANTED ns to counts Vll and JX, and MOOT as to counts II and IV. BACKGROUND The following focts, viewed in the light most favorable lo Plaintiff.lcrsonal knowledge refers lo that which the witness has perceived through the physical senses"}: c.f Sta/(1 \I. Robi11so11, 20 I5 MF. 77, 118 A.3d 242 (holding that fl witness's idenf{(ication of people in a video was ndmissihle lay opinion). Therefore, rill statements by Ms. Varney referring lo what occurred on the bus arc inadmissible as evidence in Delendanls' motio,i for summary judgment because Ms. Varney did not have personal knowledge of the cvc111s. The Courl will c\isrcgard nny stntemenl of malc1fal fact supported by inadmissible evidence in the Varney affidavit. Spccificnlly, the Court disregards paragraphs 2J-31 or Plaintiffs' statement of additional material facts, and deems paragraphs 6 and 8- l 7 of Oefondanl 's statement of focts admilled. 2 While the bus was moving, there was an altercation in R.V.'s scat between her and her scatmntc. (Id. 1118·10.) Plaintiffs allege that the callse of this altercation was bullying by R.V.'s two sea1mates, resulting in R. V. telling the boys to leave her alone; Defendants allege' that R. V. yelled at and hit her seatmnte in the lace. (Id. il11 8-9; Pis.' Opp. S.M.F. ,r~ 21-25.) After the altercation, Ms. Richards directed R.V. to move to the empty seat two rows back. (Defs.' S.M.F. ~ 10.) R.V. did not follow Ms. Richard's instructions. (id. ~ 11.) Ms. Richards stood up. walked forward to R.V.'s scat, picked her up and moved her two 1·ows back to lhe empty scat. (Id. ,r 12.) Ms. Richards then sat down in the seal next to R.V. (Id.~ 14.) Plaintiffs allege that while picking up R. V., Ms. Richards "grabbed her by the ribcage/ahdomen area and forcibly moved R.V.... then sat next to her pinning R.V.'s arms to her sides while wrapping R.V. up in an unwelcome emlm\cc. (Pis.' Opp. S.M.F. ~ 29.) The bus was equipped with a security camera that recorded the incident. (Defs.' S.M.F. ~ 18; Ex. B.) The day afte1· the incident, Tcl'ry and Kelly Varney spent over an hour reviewing the surveillance tape of the bus ride. (Pis.' Opp. S.M.F. ~ 34.) Plaintiffs allege that Kelly Varney asked Superintendent Hamlin for a copy of the video because R. V. 's counselor was going to use the video in treatment of R.V.'s posttrnumatic stress. (Id.,~ 35-36.) Supel'intendent Hamlin told Kelly Varney "You'll never see that tape, I'll bury it first" (Id. ~1 37.) When asked what she meant by that statement, Ms. Hamlin responded, "Not only will you never have a copy of that tape; you'll never sec it again." (Id.) RSU fl 67's insurance policy specifically excludes coverage for any claim "for which lhcrc would be immunity under the Maine Tort Claims Act in the absence of coverage." (Del's.' S.M.F. '119; Ex. A 2.) 3 MOTION FOR SUMMARY JUDGMENT Under M.R. Civ. P. 56, sumnrnt')' judgment is appropriate when review of the parlies' statements of material focts and record evidence to which the statements refer, considered in the light most favornble to the non·moving party, demonstrntes that there is no genuine issue of material fact that is in dispute and the moving party is entitled to judgment as a matter of Jaw. Be, No. 1: 15-CV- 01 l-NT, 2015 U.S. Dist. LEXIS 57179 (D. Mc. Apr. 30, 2015). The I.aw Court has not directly addressed the issue of whether moving a student from one seat to another on a hus violates the student's due process rights. Defendants point to several cases where the "shocks the conscience" standard required the plaintiffs to meet a very high bar, noting that "conscience shocking hehavior in the education context hos usually involved physical or sexual abuse or excessive punislunent." Gomes v. Univ. cfcndanl 's description of the eventg, as follows: While lhc bus was moving, there was :rn alccrcation in R.V.'s scat between her and her seatmate where R.V. yelled at and hit her scatmatc in the face. (Def.'s S.M.F. 11~ 8-10.) Arter the alkrcation, Ms. Richards directed R. V. 10 move to the empty scat two rows hack. (Id. (] I0.) R. V. did 1101 follow Ms. Richard's instructions. (id.'! I l.) Ms. Richards stood up, wulkcd l'orward to R.V.'s seal, picked her up and moved her two rows back to the empty seut. (Id.~ 12.} Ms. Richards then sat down in the seat next to R. V. (Id. 1 14.) 7 statement of material facts or in Plaintiffs' opposition to Defendants' statement of material facts. Since the policy itself and Ms. Hamlin's alleged violation of the policy arc not supported by Plaintiffs' statement of material facts, this count fails because there is because there is 110 genuine issue of material fact that is in dispute. Even if the allegations of a violation of procedural due process were supported by Plaintiffs' statement of malerial facts, Plaintiffs, argument fails. Under § 1983, a defendant will be liable if the plaintiff can show a direct causal link between a policy or custom and the alleged constitutional deprivation. City ofConlon v. Harris, 489 U.S. 378, 385 ( 1989). "Liability can stem from an actual policy, a custom, or a municipality's failure to train its employees.,, K v. Cily ofS. Portland, 407 F. Supp. 2d al 298. For liability to stem from o custom, the custom must be attributable to the municipality and must be '·so well settled and widespread that the policymaking officials of lhc municipality can be said to have either actual or constructive knowledge of it yet did nothing to encl the practice."' id. at 296 (quoting Bordanaro v. Mcleod, 871 F.2d 1151, 1156 (1st Cir. 1989)). Plaintiffs have not alleged n single instance where this policy was ignored, other than the event thal led lo this lawsuit. Even laking the facts laid out in the complaint in the light most favorable to Vamcys M the non-moving party, Plaintiffs have not alleged anything that could be reasom,bly construed as suggesting a "well settled and widespread" custom that could give rise to liability. K v. City ofS. Portland, 407 F. Supp. 2d at 296. For liability to stem from a failme to trnin, the plaintiff must show "an actual policy of inadequate trnining, where the need for more 01· different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the Imunicipality J can reasonably be said to have been deliberately inI setting. 9 Th~ I,aw Court has used the following four-factor test to determine whether discretionary function immunity applies: (l) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or o~jective'l (2) [s the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective? (3) Docs the act, omission, or decision requil'e the exercise of basic pol icy evnhtation, judgment, and expertise on the part of the govenu11cntal agency involved'? (4) Docs the governmental agency involved possess the requisite constitutional, statutot·y, or lawful authority and duty to do or make the challenged act, omission, or decision? Norton v. flail, 2003 ME 118, 11 6, 834 A.2d 928. Disct'etionary runction immunity is not available for ministerial nets, which are "those carried out by employees ... with little personal discretion as to the circumstances in which the act is done." Tolliver v. DOT, 2008 ME 83, ,121, 948 A.2d 1223 (quotation murks omitted). The Superior Court hns held that teachers' actions while supervising students nt school is protected under discretionary function immunity, but the Law Com1 hns not yet addressed the issue. Fraser v. Superintending Sch. Comm. ofOld Town, No. CV-14-200, 2015 Mc. Super. LEXIS 207, *11-12 (July 19, 2015). 4 Here, Ms. Richard's actions in moving R.V. involved "the exercise of basic policy evaluation, judgment, and expertise." Id. al * 12 (quotation marks omitlccl). Ms. Riclmrds was 1 • "In 2002, lhc Superior Court e,rnntcd summary judgment, holding lhat wrnstling drills conducted within the school did not constitute lhc operntion of a 1>ublic building und that the coach Wi'IS entitled to discretionai-y function imnnmity when one of his players was hurt during practice inside the school. On appeal, the Lnw Court decided the case on the pl1blic building exce1>tion, nnd did not ation, and did not reach the discretionary function question." Fmse,·, 20 IS Me. Super. LEX IS 207 al * 11-12 (ci1ing Fi) is required lo show: ( 1) lhc defendant intentionally or recklessly inflicted severe emotional distress or was certain that such dislress would result from his conduct; (2) lhe conduct was so "extreme and outrageous" ns to exceed "all possible bounds of decency" and must be regarded as "atrocious, and utterly intolerable in a civilized community;" (3) the actions of the defendant caused the plaintiffs emotional distress; and 12 (4) the emotional distress suffered by the plaintiff was so ''severe" that "no rensonable man could be expecled to endure it." 622 A.2cl 1135, 1138-39 (Mc. 1993) (quoting Vicnh·e v. Ford Mo/or Credit Co., 401 A.2d 148 (Me. 1979) (citing Restatement (Second) of Torts § 46)); see al.rn BenJ v. Woddwide language 1 Res., Inc., 716 F. Supp. 2d 34, 54 (D. Me. 2010) (applying J'vfoine law). The standard for successfully pmsuing an lIED claim is high·-gcncrally, a case is one in which the recitation of the facts to an average membe.- of the comnumity would lead him to exclaim, "Outrageous!" Restatement (Second) of Torts § 46 (l 965). Mere threats are not sufficiently "extreme and outrageous" to support a claim for IIED. Id. at cmt. d ·("liabilily clearly does not extend to mere insults, indignities, threats, annoynnces, petty oppressions, or other trivialities"); Beny, 716 F. Supp. 2d at 54 (lin with respect to counts VII and l X. As mentioned before, the motion for judgment on the pleadings is dismissed as moot for counts II and IV because those counts were dealt with in the motion for summary judgment. 15 The entry is: 1. Defendants) Motion for Summnry Judgment on Counts U, (V, V, VI, and vm is GRANTED. 2. Defendant Denise Hamlin's Motion fo1· Judgment on the Pleadings is GRANTED on Counts VII and JX. 3. Defendant Denise Hamlin's Motion for Judgment on the Pleadings is MOOT as to Counts 11 and IV. 4. The Clerk is directed to incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a). Onted 4.r/6.- ,. ~~. ~/;'./!:__ 1 G.-~---- --- - William R. Anderson Justice, Maine Superior Court 16 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811026. Public record. Not legal advice.