Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McIntosh v. Clark County School District

United States District Court, D. Nevada

September 11, 2017

Melissa Marie McIntosh, individual and natural parent and guardian of minor A.T.H., Plaintiff
v.
Clark County School District, et al., Defendants

          ORDER GRANTING DISMISSAL IN PART AND DENYING IN PART [ECF NO. 5]

          JENNIFER A. DORSEY UNITED STATES DISTRICT JUDGE.

         Melissa McIntosh's son was attacked in the locker room by another student at Faiss Middle School. The attacker was known to be violent, so McIntosh sues Clark County School District (CCSD), the superintendent, and the principal, vice-principal, and a P.E. teacher at Faiss Middle School for negligence and civil-rights violations for failing to protect her son. Defendants move to dismiss, arguing that McIntosh has not pled sufficient facts to support the elements of each claim, that they are immune from suit under § 1983, and that the Paul D. Coverdell Teacher Protection Act protects them from negligence actions. I find that, as pled: (1) McIntosh overcomes the Coverdell Act; (2) there are not enough facts for me to determine whether defendants enjoy qualified immunity from the § 1983 claim; and (3) McIntosh's complaint fails to state either a § 1983 or negligence per se claim. So, I grant the motion in part and give McIntosh leave to amend her complaint if she can plead true facts to cure the deficiencies in her claims. I also deny the motion in part because McIntosh has pled a plausible common-law negligence claim.

         Background

         Sixth-grader A.T.H. was attacked by another student at Faiss Middle School when he was changing clothes in the locker room.[1] The attacker had a history of violence towards other students and was not assigned to a locker within view of the coaches' office.[2] A.T.H. was attacked outside of adult supervision and sustained serious injury.[3] The school told McIntosh that her son's attacker had been removed from school, but when A.T.H. returned to school, the attacker was still there.[4] McIntosh sues CCSD, the superintendent, and the principal, vice-principal, and a P.E. teacher at Faiss Middle School for failing to protect her son from violence at school.

         Discussion

         A. Motion-to-dismiss standard

         Federal Rule of Civil Procedure 8 requires every complaint to contain “[a] short and plain statement of the claim showing that the pleader is entitled to relief.”[5] While Rule 8 does not require detailed factual allegations, the properly pled claim must contain enough facts to “state a claim to relief that is plausible on its face.”[6] This “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”; the facts alleged must raise the claim “above the speculative level.”[7] In other words, a complaint must make direct or inferential allegations about “all the material elements necessary to sustain recovery under some viable legal theory.”[8]

         District courts employ a two-step approach when evaluating a complaint's sufficiency on a Rule 12(b)(6) motion to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint, recognizing that legal conclusions are “not entitled to the assumption of truth.”[9] Mere recitals of a claim's elements, supported only by conclusory statements, are insufficient.[10] Second, the court must consider whether the well-pled factual allegations state a plausible claim for relief.[11] A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct.[12] A complaint that does not permit the court to infer more than the mere possibility of misconduct has “alleged-but not shown-that the pleader is entitled to relief, ” and it must be dismissed.[13]

         B. Negligence claim

         McIntosh asserts two negligence theories against the defendants-common-law negligence and negligence per se-but she pleads enough facts to sufficiently support only the common-law claim.

         1. Common-law negligence is sufficiently pled.

         “To prevail on a negligence theory, a plaintiff must generally show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of the plaintiff's injury; and (4) the plaintiff suffered damages.”[14] “[N]o duty is owed to control the dangerous conduct of another or to warn others of the dangerous conduct” unless a special relationship exists between the defendant and the victim and the harm created by the defendant's conduct is foreseeable.[15] Under Nevada common law, a special relationship exists between teacher and student.[16]

         Reading McIntosh's pleadings in the light most favorable to her and accepting all allegations as true, I find that McIntosh has sufficiently pled a plausible claim for common-law negligence against each of the defendants. Because A.T.H.'s attacker was known to be violent, it was foreseeable that he would attack another student, especially outside the view of adult supervision. Each of the defendants had a duty then to protect A.T.H. from that foreseeable attack or at least adequately respond once it began. Just one precaution that may have prevented the attack would have been to assign the violent student to a locker near the coaches' office where he would be observed and supervised. By failing to implement that precaution, the defendants breached their duty to protect A.T.H., and that breach actually and proximately caused A.T.H.'s injuries. Because inferences can be reasonably drawn from the facts pled in McIntosh's complaint to satisfy each element of McIntosh's common-law negligence claim, it satisfies Rule 8 and I therefore deny the motion to dismiss it.

         2. Negligence per se is insufficiently pled.

         McIntosh also seems to allege a negligence cause of action founded upon a negligence per se theory for which she alleges that the defendants had duties arising from the Nevada Administrative Code and Nevada statutes.[17] But her complaint lacks facts that allow me to draw an inference that will satisfy each element. Negligence per se is a theory of liability that helps a plaintiff satisfy the duty and breach elements of a negligence claim if the plaintiff can plead and prove: (1) the existence of a statute that supplies a duty; (2) a violation of that statute; (3) the plaintiff is of the class of people that the statute was designed to protect; and (4) the plaintiff suffered an injury of the type that the statute was designed to prevent.[18]

         McIntosh refers broadly to five chapters of various Nevada statutes and administrative code in her complaint hoping that they satisfy the first element-they do not. McIntosh needs to specifically plead the precise statutes that “impose a duty of reasonable professional judgment and reasonable care upon [the defendants] in carrying out their responsibilities”[19] in order to plead a viable legal theory. The defendant is not required to guess. And without knowing the statute that supplies the basis for McIntosh's negligence per se theory, it is impossible for me to determine whether the other three elements of this claim are satisfied. I therefore dismiss this claim for failure to state it and give McIntosh leave to amend her complaint to cure this deficiency if she wants to proceed on a negligence per se theory.

         3. Coverdell Teacher Protection Act

         Defendants argue that “the District and its employees are immune from liability for negligence under the Paul D. Coverdell Teacher Protection Act of 2001[.]”[20] But the Coverdell Act only immunizes a teacher's acts or omissions if (in relevant part):

(1) the teacher was acting within the scope of the teacher's employment or responsibilities to a school or governmental entity;
(2) the actions of the teacher were carried out in conformity with Federal, State, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;
(3) if appropriate or required, the teacher was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice involved in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher's responsibilities;
(4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.