NEW ORLEANS (Legal Newsline) - A Louisiana school board was inappropriately dismissed from a lawsuit by the mother of a child who accused his special education teacher of taking him to weekend outings and e-mailing pictures of diapers and “guys at bars,” an appeals court ruled.
The St. Bernard Parish School Board must face trial on claims it was vicariously liable for the acts of teacher David Kimberly, the Fourth Circuit Court of Appeal ruled in a Feb. 4 decision, citing Louisiana precedent holding government employers liable when employees use the authority granted to them to commit torts.
The opinion by Judge Joy Cossich Lobrano reversed a decision by the St. Bernard Parish District Court dismissing the lawsuit against the school board, which argued it couldn’t be sued for negligent hiring of Kimberly at the same time as it was accused of being vicariously liable for his acts. The appeals court said Louisiana’s system of fact pleading allows plaintiffs to lay out facts supporting their claims without stating specific legal theories.
A woman identified as J.C. sued the school board in 2017, after she discovered e-mails from the teacher to her son N.C. showing soiled diapers. Kimberly had been her son’s special education teacher in the 2013-2014 school year, when he took the boy mini-golfing, to the zoo and to an IHOP restaurant. Kimberly said he took the boy, then in fifth grade, on outings without notifying his mother because he “made the honor roll for the first time, had been selected as ‘Terrific Kid,’ and student of the month, as well as meeting all of his goals.”
After J.C. and her son moved to Tennessee, she discovered Kimberly had set up an e-mail account for her son, writing: “From now on you can use this email address for me. Don’t forget to sign out when you are done!” In another email, he wrote: “I really want to talk to you sometime when you are alone. I have some things to show you and I want you to show me somethings.”
In December 2016 J.C. accessed her son’s account and discovered recent e-mails from Kimberly containing pictures of “training pull-ups, potty seats that had been used and not clean, guys at bars, bottles.” The boy later stated at a therapy session his former teacher had also sent him pictures of soiled diapers and offered to travel to Tennessee and rent a hotel room for them to stay in together.
The school board argued Kimberly had passed a background check and the school had no way of foreseeing his behavior with the boy. The appeals court said the school board still could be vicariously liable, however, because of the teacher’s inherent authority over his students.
Louisiana courts have held the state vicariously liable when employees abuse their authority to commit torts, including a prison guard who raped a prisoner on prison grounds and a culinary school director who raped a student after she agreed to accompany him on various business appointments she believed would help her in her career.
“We find that the evidence in this case is sufficient to support the claim of vicarious liability being presented to a fact finder,” the court concluded.