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Kreutzer v. Aldo Leopold High School

Court of Appeals of New Mexico

August 7, 2017

LORI KREUTZER and MARCELLE CARUSO, Plaintiffs-Appellants,

         APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY Jennifer E. Delaney, District Judge.

          Law Office of Christopher D. Lee, LLC Christopher D. Lee Albuquerque, NM for Appellants.

          Narvaez Law Firm, P.A. Henry F. Narvaez Albuquerque, NM for Appellee.


          LINDA M. VANZI, Chief Judge.

         {1} This appeal requires us to answer two questions of law. The first question, one of first impression, is whether defendant Aldo Leopold High School (ALHS), a charter school in Grant County, New Mexico, is a public school and therefore subject to the protections afforded to governmental entities by the New Mexico Tort Claims Act (the TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015). The second question is whether the negligence claim asserted against ALHS in this case falls within Section 41-4-6(A) of the TCA, an exception to the TCA's general rule of governmental immunity from tort liability. In the proceedings below, ALHS argued in separate motions that it is entitled to summary judgment because, as a matter of law, (1) ALHS is a public school protected by the TCA, and (2) Plaintiffs' negligence claim does not fall within the waiver of TCA immunity provided by Section 41-4-6(A). The district court granted both motions. We affirm both orders.


         {2} At the end of the school day on March 1, 2012, Marcelle Caruso was walking to her car in the ALHS student parking lot when she was assaulted and beaten by fellow ALHS student Nisha Milligan. Nisha had been sitting in a friend's car in the school parking lot waiting for Marcelle, and when Marcelle came out of the school building, Nisha walked across the parking lot, called Marcelle's name, and began beating her. Nisha knocked Marcelle to the ground and continued to beat her, causing serious injuries, including a torn right anterior-cruciate ligament that required surgical reconstruction and painful rehabilitation.[1]

         {3} Nisha later said she did this because she was angry with Marcelle for bumping her in the hall that day and for laughing at her at an earlier time she could not recall. Nisha did not report to any ALHS teacher or staff member that Marcelle had laughed at her. Marcelle testified that before March 1, 2012, she had never been threatened by anyone at ALHS, including Nisha, and was never afraid for her safety at school.

         {4} ALHS Director Eric Ahner testified that Nisha told him after the incident that Marcelle "was talking badly about her" and "was giving her bad looks, " but that before the incident, he had no information that Marcelle had ever bullied or harassed Nisha, and that he had seen "no indications whatsoever of any propensity of [Nisha] being violent or physical with anybody, student or staff." During the three years she attended ALHS, Nisha had no altercations with other students. Ahner stated in an affidavit that there were no student-on-student altercations in the ALHS parking lot in the seven years between the school's inception in 2005 and the March 1, 2012 assault.

         {5} When the assault took place, ALHS had written policies prohibiting student behavior including belligerence, fighting, bullying, harassment, and conduct in violation of state and federal law but no written policies specifically relating to supervision of the parking lot or to prevention of student-on-student altercations. Training is conducted for staff members, and staff meetings held at the beginning of each school year devote significant time to basic safety within the school and to such safety-related matters as CPR training, fire drills, managing behavior, recognizing and de-escalating conflicts between students, handling altercations, and other aspects of student supervision. Each year, ALHS staff and students develop a set of "school norms." ALHS has also conducted formal training with students to address issues such as conflict resolution.

         {6} ALHS faculty and staff are given assignments each year, including supervising the student parking lot after school. In addition to the training all staff members receive at the beginning of the school year, the individual assigned to supervise the parking lot receives training concerning traffic issues such as speed limits, keeping students away from traffic, and where students may park, as well as about applying the same principles of child safety, including handling student-on-student altercations, outside the school building as are applied inside.

         {7} Judy Runnels was assigned to monitor the student parking lot in 2012. Although she was at ALHS and on monitoring duty March 1, 2012, she was not in the parking lot at the time of the assault but was in the bathroom. At the end of classes that afternoon, Runnels left the classroom where she had been teaching, walked down the hall, dropped off her books in another classroom, stopped to use the bathroom, and went outside through the school's main entrance. When she arrived in the parking lot, the incident between Nisha and Marcelle was over and there was no sign that anything had happened. It was not until she went back into the building after her monitoring shift ended that Runnels heard about the fight.[2]

         {8} Ahner commenced an investigation as soon as he learned of the incident. He disciplined Nisha and removed her from the general population at school by assigning her an "interim alternative educational placement." Nisha did not graduate from ALHS. Marcelle missed three months of school as a result of her injuries, stopped participating in dance, and eventually moved to New Jersey.


         {9} In July 2013 Lori Kreutzer, as next friend of her minor child Marcelle (collectively, Plaintiffs), filed suit against ALHS and others. Against ALHS, Plaintiffs assert a negligence claim based on allegations that ALHS "owed a duty to Marcelle . . . to use ordinary care to keep the premises of its school safe, including the parking lot" and breached that duty "by failing to take reasonable precautions to keep the school safe" and "by failing to provide adequate security or supervision in the school parking lot[.]" The complaint does not identify a dangerous condition existing in the school parking lot, or allege that ALHS knew or should have known that the parking lot was unsafe, or that ALHS knew or should have known that Nisha had a propensity for violence or posed a threat to Marcelle.

         {10} The complaint alleged that ALHS is "a privately operated charter school" and, therefore, "does not fall within the scope of" the TCA, but that the immunity afforded to government entities by the TCA is waived by Sections 41-4-4 and -6 "for [ALHS's] negligence and that of its employees in failing to properly maintain the school parking lot in a safe condition." In answering the complaint, ALHS stated that it is a charter school, as defined in the Charter Schools Act (the CSA), NMSA 1978, §§ 22-8B-1 to -17.1 (1999, as amended through 2015), and "is thus a public school . . . subject to the [TCA.]" ALHS also raised TCA-based affirmative defenses.

         {11} ALHS moved to dismiss under Rule 1-012(B)(6) NMRA, arguing that (1) ALHS is a charter school under the CSA and, thus, a public school subject to suit only if the TCA waives immunity for the claim asserted against it; (2) Plaintiffs do not allege a "pattern" of dangerous behavior or a dangerous condition on the premises, but only a single instance of negligent supervision, which does not fall within the Section 41-4-6(A) immunity waiver; and (3) the TCA bars Plaintiffs' claims for punitive damages and pre-judgment interest. Plaintiffs opposed the motion, arguing that nothing in the text of the TCA or CSA indicates that "the Legislature intended privately operated schools to be immune from tort liability, " as the TCA does not mention "charter schools" and the CSA does not mention "immunity, " and that ALHS had not shown that it met the definition of a charter school, or that a charter school is a public school entitled to TCA immunity. Plaintiffs also maintained that their argument was not that the act of violence alleged in the complaint, by itself, rendered the ALHS parking lot unsafe, but that "a dangerous condition existed on the premises, namely the absence of adequate security, supervision, or employee oversight to prevent student fights."

         {12} In its reply, ALHS countered that a charter school cannot exist unless it complies with the CSA's requirements and that charter schools are public schools subject to the TCA. As for Plaintiffs' contention that their claim falls within the Section 41-4-6(A) waiver, ALHS argued that Plaintiffs' claim is that the fight would not have occurred if there had been adequate supervision and that, as a matter of law, Section 41-4-6(A) does not waive immunity for claims of negligent supervision. The district court denied the motion to dismiss in an order that did not explain the basis for its decision.

         {13} ALHS subsequently moved for summary judgment on the issue of its status as a public school subject to the TCA. The motion attached the charter agreement and documents evidencing the New Mexico Public Education Commission's renewal of ALHS's state charter, noting that the district court had advised at the hearing on the motion to dismiss that it could not determine whether ALHS was subject to the TCA without reviewing the charter agreement. Plaintiffs did not respond to this motion, and the district court granted it, ruling that ALHS "is a Public Charter School under the provisions of the [TCA.]"[3]

         {14} ALHS separately moved for summary judgment on the ground that, as a matter of law, Section 41-4-6(A) did not waive TCA immunity because Plaintiffs' claim is for negligent supervision, and precedent holds that Section 41-4-6(A) does not waive immunity for such claims. ALHS cited Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, 310 P.3d 611, to support its argument that Section 41-4-6(A) does not waive immunity absent a dangerous condition on the premises, and this requirement cannot be met because "a single act of student-on-student violence does not render the premises unsafe, " and there is no evidence of a pattern of violence in the parking lot. Plaintiffs also cannot establish waiver under Upton v. Clovis Municipal School District, 2006-NMSC-040, 140 N.M. 205, 141 P.3d 1259, ALHS contended, because Upton requires multiple safety policy failures, and there is no such evidence here. See id. ¶ 21.

         {15} In opposing the motion, Plaintiffs contended that their claim is not based on negligent supervision but on ALHS's failure to have an appropriate written policy for student safety in its parking lot and its failure on the day of the incident to follow an informal policy of having the parking lot monitored by a staff member. Plaintiffs emphasized that they do "not ask the [c]ourt to apply Encinias on its facts" and explicitly disclaimed reliance on a theory that "the high school parking lot was a 'hot zone' for violence, as in Encinias." Their argument relied principally on the general statement in Encinias that "the facts of a case will support a waiver under Section 41-4-6(A) if they would support a finding of liability against a private property owner[, ]" Encinias, 2013-NMSC-045, ¶ 15, and the general statement in Upton that the waiver applies to "safety policies necessary to protect the people who use the building." Upton, 2006-NMSC-040, ¶ 9. They insisted that their claim is distinct from negligent supervision and is the type of claim Upton recognized as falling within Section 41-4-6(A), "namely, where public employees fail to have or follow safety policies that apply to those who use a public building."

         {16} Plaintiffs also submitted an affidavit of C. Joshua Villines, asserting that it established that "[t]he standard of care applicable to schools is that they have appropriate written policies in place for student safety" and that "ALHS failed to meet the standard of care in multiple ways." The affidavit declares that Villines is "an expert in school safety." The opinion attached to the affidavit (Opinion) indicates that he reviewed "crisis response and safety policies and procedures for the City Schools of Decatur, Georgia" and provided training for faculty concerning "crisis planning and response, workplace and school violence, and threat assessment." But neither the Opinion nor Villines' resume show any education or training specific to public school safety, public school parking lots, or the prevention of student-on-student altercations on public school premises. And Villines does not explain how credentials such as a board certification in "Security Management" by ASIS International or designation as an "International Crime Prevention Specialist" by the International Society of Crime Prevention Practitioners, or any other education or experience he cites, make him competent to testify as an expert concerning the standard of care for New Mexico public school parking lots related to student-on-student violence.

         {17} Villines also offered no explanation or authority supporting his assumption that what he cites as "industry standards" define the standard of care New Mexico public schools must meet to address student-on-student violence in school parking lots. The titles of the texts he cites and the names of the organizations to which they are attributed suggest that the "industries" he relies on bear little or no relationship to public schools.[4] The Opinion does refer to schools and "educational setting, " but it contains no specific discussion of spontaneous student altercations in public schools, only general statements with citations to texts that appear to address such issues as suicide prevention and "crisis plans" and "emergency response procedures" for catastrophic emergencies such as school shootings.

         {18} Villines nevertheless opined that ALHS had failed to meet the standard of care by failing to: (1) "create written policies and procedures for the supervision of the parking lot"; (2) "have a capable guardian present in the parking lot at the time of the incident"; (3) "perform and maintain a security vulnerability assessment which included the parking lot"; (4) "provide adequate supervision of the personnel assigned to the parking lot, leading to the absence of the assigned faculty member at the time of the incident"; (5) "establish a written security plan that included the parking lot"; and (6) "establish a comprehensive formal threat assessment process for the centralized archival, assessment, documentation, and tracking of threatening or potentially violent behavior." Villines does not say that any of these failures created a dangerous condition in the ALHS parking lot that threatened the safety of those who used it, or that implementation of any measure he claimed is required by his proffered standard of care would have prevented Nisha's assault on Marcelle. Plaintiffs adduced no other evidence purportedly demonstrating the existence of a dangerous condition in the ALHS parking lot, nor any evidence that ALHS knew or should have known that the parking lot was unsafe or that Nisha might attack Marcelle or anyone else.

         {19} Neither Villines nor Plaintiffs discussed what, if anything, the statutes and regulations governing New Mexico public schools require for the safe operation of student parking lots, the financial limitations within which public schools must operate, or the impact on any of the foregoing on the proffered "industry" standard of care. Nor did Plaintiffs adduce any evidence that ALHS made safety-related promises to Marcelle (or to any student) or that Marcelle's parents (or any parents of students) relied on any such promises.

         {20} Plaintiffs offered no reason why expert testimony was necessary, or even relevant, to resolution of the legal question presented in the summary judgment motion-whether her negligence claim against ALHS falls within the Section 41-4-6(A) waiver of immunity. They simply cited the list of ALHS failures identified by Villines as material facts barring summary judgment, stating that they had "met their burden of coming forward with proof that ALHS was negligent under the premises liability rule of Encinias, or at least of demonstrating that disputed issues of material fact exist and preclude summary judgment in favor of ALHS."

         {21} In reply, ALHS argued that the policies public schools are required to implement are not determined by expert testimony but are prescribed by the Public School Code (the PSC), NMSA 1978, §§ 22-1-1 to -33-4 (except Article 5A) (1967, as amended through 2017), and Chapters 11 and 12 of the New Mexico Administrative Code, which do not require the measures Villines said ALHS failed to implement, and that the Legislature expressly stated in the TCA that government entities are not obligated to do everything that might be done for the benefit of the public. For these and other reasons, ALHS said, the failures cited by Villines are not material.

         {22} Noting Plaintiffs' representation that they did not rely on an Encinias theory of a pattern of violence, ALHS argued that Runnels' absence from her assigned post was a single instance of negligent supervision for which Section 41-4-6(A) does not waive immunity, reiterating that negligence claims based on student-on-student altercations are treated as claims for negligent supervision, for which Section 41-4-6(A) does not waive immunity, and that, despite her contrary assertions, Plaintiffs' claim is that ALHS was negligent in failing to have adequate supervision in the parking lot.

         {23} ALHS further argued that Plaintiffs cannot establish that their claim falls within Section 41-4-6(A) based on an Upton theory of failure to follow a safety policy because there was no evidence that ALHS failed to implement or follow necessary safety policies, and ALHS had safety policies for student-on-student altercations and had assigned a staff member to monitor the parking lot. Even if Runnels' absence at the time of the incident was a safety policy failure, ALHS argued that this would not establish a waiver because the decision in Upton was based on and requires multiple safety policy failures.

         {24} The district court granted ALHS's summary judgment motion. In ruling that Section 41-4-6(A) does not waive TCA immunity for Plaintiffs' claim, the court concluded that there was no pattern of violence or "hot zone" in the parking lot that ALHS failed to address, as in Encinias; to the extent the claim is based on the absence of adequate safety policies, ALHS had an unwritten policy of staff-member supervision of the parking lot after school; and multiple safety policy failures were not shown, as Upton requires. The court also determined that ALHS did not breach its duty of care to its students because "New Mexico law does not require that a public high school have a written policy concerning parking lot safety."

         {25} Plaintiffs appeal, arguing that the district court erred in ruling that (1) ALHS is subject to the TCA; (2) ALHS is not required to have a written policy concerning student safety in its parking lot; (3) a Section 41-4-6(A) waiver based on Upton requires multiple policy failures; and (4) Plaintiffs failed to demonstrate a genuine dispute of material fact barring summary judgment.


         Summary Judgment

         {26} We review summary judgment decisions de novo. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. Although we ordinarily review the whole record in the light most favorable to the party opposing summary judgment, we do not do so where pure questions of law are at issue. Rutherford v. Chaves Cty., 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199 (stating this proposition in addressing the question whether the claim asserted in that case fell within a different TCA waiver), abrogated on other grounds as recognized by Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, ¶¶ 8-9, 341 P.3d 1; Holguin v. Fulco Oil Servs. L.L.C., 2010-NMCA-091, ¶ 7, 149 N.M. 98, 245 P.3d 42.

         {27} Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Rule 1-056(C) NMRA. If the movant establishes that there are no material fact issues and that it is entitled to judgment as a matter of law, "the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Romero, 2010-NMSC-035, ¶ 10 (internal quotation marks and citation omitted). The non-movant cannot meet this burden with allegations or speculation but must present admissible evidence demonstrating the existence of a genuine issue of fact requiring trial. Rule 1-056(C), (E); Romero, 2010-NMSC-035, ¶ 10. If the non-movant fails to do so, "summary judgment, if appropriate, shall be entered against him." Rule 1-056(E).

         {28} To defeat summary judgment, allegedly disputed facts must be material, meaning that they are necessary to ground the claim under the governing law and will affect the outcome of the case. Romero, 2010-NMSC-035, ¶ 11; see Martin v. Franklin Capital Corp., 2008-NMCA-152, ¶ 6, 145 N.M. 179, 195 P.3d 24 ("An issue of fact is 'material' if the existence (or non-existence) of the fact is of consequence under the substantive rules of law governing the parties' dispute."); Farmington Police Officers Ass'n v. City of Farmington, 2006-NMCA-077, ¶ 17, 139 N.M. ...

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