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Ward v. Barnes

February 29, 2008


The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge



I. INTRODUCTION ...................... 1

II. FACTS........................... 4

III. MOTIONS FOR SUMMARY JUDGMENT .. . . . . . . . . . . . . . 8

A. Standard....................... 8

B. Motion by Gismonde Parents. . . . . . . . . . . . . 10

C. Motion by Barnes.................. 17

1. Count Six: Battery.. . . . . . . . . . . . . . 18

2. Count Seven: New Jersey Constitutional Claim.. 19

3. Count Eight: Intentional Infliction of Emotional Distress.................... 20

4. Count Nine: Negligence Per Se. . . . . . . . . 25

5. Count Ten: Negligence. . . . . . . . . . . . . 27

6. Count Twenty-four: Economic Loss by the Wards. 30

7. Damages for Pain and Suffering.. . . . . . . . 32

8. Punitive Damages.. . . . . . . . . . . . . . . 35

D. Motion by the Sterling Defendants.. . . . . . . . . 38

1. Whether the Sterling Defendants can be Liable in Tort for Barnes's Actions. . . . . . . . . . . 39

2. Direct Negligence Claims Against Sterling Defendants................... 41

3. Section 1983 Claims Against Sterling Defendants ........................ 44

4. IDEA Claims.................. 50

E. Plaintiffs' Motion for Summary Judgment.. . . . . . 50

1. No Basis for Claims. . . . . . . . . . . . . . 51

2. Battery.................... 51

3. Negligence................... 52

IV. CONCLUSION........................ 53

Simandle, District Judge:


Plaintiff Michael Ward, a student with cerebral palsy, was allegedly assaulted by fellow students in his high school gym class in 2002 at the direction of his teacher. Michael Ward alleges school authorities did nothing to prevent this and other assaults. Michael and his parents bring claims under federal and state law against the students, the teacher, and various school district employees and officials in the Sterling High School District, seeking money damages.

Before the Court are the motions for summary judgment by Defendants Jane Gismonde and Steven Gismonde, Sr. ("the Gismonde parents" or "the Gismondes") [Docket Item 72]; Defendant Walter Barnes ("Barnes") [Docket Item 73]; Defendants James Gallagher, Jack McCulley, Sterling High School District Board of Education, Sterling High School District and David Tannenbaum ("the Sterling Defendants")[Docket Item 74]; and by Plaintiffs Barbara Ward, John Ward, and Michael J. Ward ("the Wards" or "Plaintiffs") [Docket Item 75]. The Court heard oral argument and reserved decision. For the reasons explained below, the Court shall grant the motions in part and deny them in part.

Plaintiffs' Amended Complaint contains twenty-four counts of allegations against the defendants.

Counts One through Four allege claims by Michael Ward against Walter Barnes in his capacity as an employee of or agent for Sterling High School; in other words, they assert claims against Sterling High School Board of Education and Sterling High School District for Barnes's conduct under the theory of respondeat superior.

Counts Six through Ten are claims by Michael Ward against Barnes in his individual capacity: Count Six alleges battery, Count Seven alleges a New Jersey Constitutional claim, Count Eight alleges intentional infliction of emotional distress, Count Nine alleges negligence per se, and Count Ten alleges negligence.

Counts Eleven and Twelve are claims by Michael Ward against Sterling High School District Board of Education. Count Eleven alleges a claim pursuant to 42 U.S.C. § 1983 that "Plaintiff Michael Ward has been deprived by Defendant Sterling High School District Board of Education, while acting under color of state law, of his rights, privileges and immunities secured by the Constitution and laws of the United States of America and the State of New Jersey; specifically, his liberty interest in bodily integrity and freedom from fear, intimidation, beatings and physical attacks perpetrated by Defendants, Barnes, and Steven E. Gismonde, Jr., Joseph Van Blarcom, Kyle Hunt and John Does 4-10." (Am. Compl. ¶ 193.) Count Twelve is a negligence claim against the Sterling High School District Board of Education.

Counts Thirteen and Fourteen allege the same claims as in Eleven and Twelve but against "the Sterling High School District." It is not clear how this defendant differs from the Sterling High School District Board of Education.

Count Fifteen is a claim pursuant to 42 U.S.C. § 1983 by Michael Ward against David Tannenbaum individually and in his official capacity as principal of Sterling High School, asserting the same deprivation of constitutional liberty described above. Count Sixteen is a claim by Michael Ward against David Tannenbaum individually and in his official capacity as principal of Sterling High School, asserting negligence.

Count Seventeen is a claim by Michael Ward against Jack McCulley, individually and in his capacity as Superintendent of Sterling High School District, pursuant to 42 U.S.C. § 1983, for establishing customs and policies that violated Michael Ward's constitutionally-protected liberty interest in bodily integrity. Count Eighteen is also a claim by Michael Ward against McCulley in his individual and official capacities, asserting negligence for, among other things, his failure to remove Barnes from the classroom, failure to discipline offending students, failing to supervise administrators to prevent the beatings, failing to adequately train personnel, and failing to provide adequate security.

Counts Nineteen and Twenty are claims alleging violation of the Individuals with Disabilities Education Act ("IDEA") against Defendants Sterling High School District Board of Education and Gallagher, respectively.

Count Twenty-Three asserts a claim of negligence against parents of students who allegedly assaulted Plaintiff Michael Ward.

In the twenty-fourth count, which is incorrectly labeled Count Twenty-Eight, Barbara and John Ward, Michael's parents, assert a claim for economic loss against all defendants. They claim that because of the acts and omissions of the defendants, John Ward missed work and lost wages to care for his son.


Plaintiff Michael Ward was a student at Sterling High School in a program exclusively for students with behavioral disabilities in May of 2002, when the incident that sparked this litigation occurred. Plaintiffs claim that during a gym class that Defendant Barnes was supervising on May 9, 2002, Barnes told the students to "get" Michael Ward, and that they hit, kicked and punched Ward until another teacher came into the room to stop it.

(M. Ward Dep. at 143-45.) Michael Ward was unable to recall, at his deposition, which students were involved in the incident, although he believed Steven Gismonde, Jr. (son of Defendants the Gismonde parents) was involved. A former Vice-Principal at Sterling High School, Reno Domenico, testified that Steven Gismonde was involved in the incident. (Domenico Dep. at 81, Pl.'s Ex. O.) Paul Reagle, another teacher at Sterling High School, testified that he witnessed three students, Defendants Kyle Hunt, Steve Gismonde and Joe Van Blarcom, crouched over Michael and punching him in the presence of Defendant Barnes, during this physical education class. (Reagle Dep. at 106-09.)

Plaintiffs claim that these students in Michael's class attacked him at the direction of their teacher, Defendant Barnes. Plaintiffs claim that the beating caused serious physical and emotional injuries, including lasting psychological problems.

Plaintiffs claim that Michael had been the target of attacks by students at Sterling High School for some time prior to this incident. In addition to any emotional or behavioral problems Michael Ward may have, he also has cerebral palsy, which made it difficult for him to walk and was obvious to others. (Barnes Dep. at 130, M. Ward Dep. at 119-20.) Initially, Michael did not complain to his parents or teachers about the beatings he was receiving at school because he feared they would only get worse.

However, Plaintiffs allege that teachers and school administrators were aware that punching and other aggressive physical behavior was commonplace in the program in which Michael had been placed. Defendant Walter Barnes was one of the teachers in the program for students with behavioral disabilities.

(Tartaglione Dep. at 45.) (This program was referred to during Barnes's deposition as "ED self contained," for emotionally disturbed students, and all parties acknowledge that the students referred to it as "the Box.")*fn1 Barnes was aware that students in his class hit one another, but considered this to be "horseplay" and admitted that he gave his students more leeway before disciplining them than he would have given to students in the mainstream population. (Barnes Dep. at 132.) Michael testified that Barnes witnessed some of the beatings he suffered prior to May 2002 and did nothing to stop them. Barnes testified that he complained and sought assistance from the Sterling High School administration and others in monitoring and disciplining the students, both inside and outside the classroom. (Barnes Dep. at 137-38, 146-48, 162.) Barnes specifically mentioned that Steve Gismonde Jr., along with Joe Van Blarcom and Kyle Hunt, were "out of control", more likely to hit than other students were, and "did whatever they wanted." (Barnes Dep. at 134-35.) Barnes testified that neither he nor the Administration were interested in providing an education to the emotionally disturbed students, but rather simply wanted to "get[] through the day." (Barnes Dep. at 167.) Barnes also testified that he reported disciplinary infractions in the classroom to Defendant Gallagher and that no disciplinary action or counseling occurred. (Barnes Dep. at 174-76.)

In January of 2002, Barbara Ward, Michael's mother, called the school to speak to a member of the Child Study Team at Sterling High School, Nancy Tartaglione, about bruises she had seen on Michael's body. (Tartaglione Dep. at 39-40; B. Ward Dep. at 118-19, 125.) Ms. Tartaglione testified that she spoke to Mr. Gallagher and Mr. Regale, one of Michael's teachers, who also spoke with Mr. Barnes, and none of them indicated any awareness of where Michael's bruises could have come from. (Tartaglione Dep. at 51-52, 44-46.) Ms. Tartaglione also testified that she spoke with Michael who indicated that his mother was unnecessarily worried and that there was no problem to report. (Id. at 41-42.) Ms. Tartaglione testified that she did not speak to anyone else about the alleged bruising and did not make any notation in Michael's file about it. (Id. at 51-52.)

Michael testified that Defendant Gallagher, head of the Child Study Team, spoke to him about his bruising, that Michael indicated it was caused by other students who were in "the box" with him as well as in a carpentry class, which he had switched out of (M. Ward Dep. at 106-07), and that Mr. Gallagher indicated he would take care of it (M. Ward Dep. at 102-05). Michael also testified that Gallagher subsequently called Barnes out of class to speak with him (M. Ward Dep. at 103-05) and that the other students learned about his mother's complaints, which caused increased beatings in retaliation.


A. Standard

Summary judgment is appropriate when the materials of record "show 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." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed. 2d 731 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).

Although entitled to the benefit of all justifiable inferences from the evidence, the nonmoving party may not, in the face of a showing of a lack of a genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings; rather, that party must set forth 'specific facts showing that there is a genuine issue for trial,' else summary judgment, 'if appropriate,' will be entered." U.S. v. Premises Known as 717 South Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993) (quoting Fed. R. Civ. P. 56(e))(citations omitted).

"Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The summary judgment standard does not change when, as here, the parties have filed cross-motions for summary judgment. See Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). Cross-motions for summary judgment:

are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.

Transportes Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). If review of cross-motions for summary judgment reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. See Iberia Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d Cir. 1998) (citing Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139, 145-46 (3d Cir. 1988)).

B. Motion by Gismonde Parents

Plaintiffs assert in Count Twenty-Three of the Amended Complaint that the Gismonde parents are responsible for injuries their minor son caused Plaintiffs, under a negligence theory. Specifically, Plaintiffs allege that the Gimondes knew or should have known that their son repeatedly beat Michael Ward and that therefore, they are liable for failing to prevent the physical attacks, including the incident in May 2002.

The Gismondes move for summary judgment on two grounds. First, they allege that they are entitled to summary judgment because there is no evidence that would indicate they knew or should have known that their son was harming Plaintiff Michael Ward. Second, they claim that even if there was such evidence, they would be entitled to parental immunity for any alleged lack of supervision. For the reasons explained below, the Court shall grant the Gismondes' motion for summary judgment.

On the Gismondes' motion for summary judgment, the Court must view the facts in the record in the light most favorable to Plaintiffs. Principal Tannenbaum testified that there were disciplinary problems with Steven Gismonde during his time at Sterling, that he was involved with the juvenile justice system and that the Gismonde Parents were aware both of the problems at school and with the police. (See Pl's Ex. I, Tannenbaum Dep. at 202-04). Although Tannenbaum could not recall whether any of the incidents involving Steven Gismonde included violence, he testified that he recalled meeting with the Gismonde parents between two and five times each year their son was at Sterling about his behavior problems. (Id. at 204.)

In their briefing, Plaintiffs allege that Barnes testified that he spoke to the Gismonde parents about Steven's discipline problems prior to the incident at the center of this lawsuit and cite to page 240 of Barnes's deposition transcript. (Pl's Gismonde Br. at 6) However, that page does not exist because the deposition ends at page 198. The Court has reviewed Barnes's testimony and finds only that it provides evidence that Barnes reported Steven Gismonde's misconduct, including his tendency to hit other students, to members of the Sterling High School Child Study Team, but that there is no evidence in Barnes's testimony of any conversations with the Gismonde parents about Steven Gismonde Jr.'s allegedly violent misconduct. Moreover, the Court was not able to locate any point in the testimony that describes any communication between Barnes and the Gismonde parents relating to his hitting other students or mistreating Michael Ward in any way.

In addition, at oral argument Plaintiffs argued that evidence in Exhibit O, Reno Domenico's deposition, along with testimony from Barnes, showed that Steven Gismonde Jr. had assaulted another boy, nick-named "Tug Boat," with so-called "turtle taps" and that the school failed to discipline Gismonde, Jr. for this.*fn2 Plaintiffs cited to no particular page in the testimony that reveals this fact, other than the questioning of Domenico about whether he was aware of such an incident, to which he replied that he was not. (Domenico Dep. at 109.) More importantly, there has been no evidence presented to this Court that the Gismondes were notified of a fight between their son and "Tugboat" or of any other assaultive conduct by Gismonde, Jr.

Because there is no evidence before the Court from which a reasonable jury could find the Gismonde parents knew or should have known of the injuries their son was allegedly causing Michael Ward at school, or that he was behaving violently in general, the Court shall grant the motion for summary judgment as to the Gismonde parents. Plaintiffs have only come forward with evidence indicating that the Gismondes were notified that Steven Gismonde, Jr. was in trouble at school for non-violent conduct, such as tardiness, ...

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