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Wendy Reichert v. the Pathway School

March 26, 2013

WENDY REICHERT
v.
THE PATHWAY SCHOOL, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

The plaintiff, Wendy Reichert, initiated this case in her capacity as parent of John Doe, who, while attending defendant Pathway School, was repeatedly sexually abused by an older student on school premises. Ms. Reichert brings her suit against Pathway School under a negligence cause of action. She brings her suit against Garnet Valley School District, which participated in the placement of John Doe at Pathway and remained responsible for his education, under the "state-created danger" theory of 42 U.S.C. § 1983.

There are two pending motions in this case. Pathway School has moved for partial summary judgment on the plaintiff's claim for punitive damages. Garnet Valley has moved for summary judgment on the entirety of the plaintiff's state-created danger claim. For the reasons stated below, the Court denies Pathway's motion for partial summary judgment, and it grants Garnet Valley's motion for summary judgment.

I. Factual and Procedural History

A. Factual Summary*fn1

Minor-plaintiff John Doe was a student residing within the Garnet Valley School District ("District") in Pennsylvania. From first until third grade, John Doe attended Bethel Springs Elementary School in that district. First Am. Compl. ¶ 3; Tr. Wendy Reichert Dep. 10/13/11 ("Reichert Dep. I") 91:20-23.

In or around the fall of 2007, when John Doe was in third grade, he was diagnosed with Asbergers syndrome, an autism spectrum disorder. John Doe's behavioral issues manifested itself in the form of verbal outbursts and tantrums, aggression problems, and inappropriate comments on the school bus. The school also observed that John Doe had on more than one instance stood on the toilet in the boys' bathroom and looked at students in other stalls. Reichert Dep. I 41:8-42:15; 31:3-7, 20-23; 69:18-70:12; Beverly Smith Dep. ("Smith Dep.") 20:5-23; Becky Konkle Dep. ("Konkle Dep.") 25:22-26:13.

In or around the spring of 2008, the District informed John Doe's mother, Wendy Reichert, that it could not provide the therapy or support her son needed. Ms. Reichert began having conversations with teachers and administrators about possible alternative placement outside of the District. Reichert Dep. 1/18/12 ("Reichert Dep. II") 139:19-140:15; 141:12-14.

At an Individualized Education Program (IEP) meeting in May 2008, John Doe's IEP team discussed the possibility of moving him to an alternative school for the subsequent school year. John Doe's IEP team at that point consisted of various members of the District, including the school psychologist and assistant director of special education, and Ms. Reichert, who also holds a post master's degree in school nursing. Reichert Dep. I 10:3-8; Reichert Dep. II, 179:1-9; Smith Dep. 47:3-8; 52:22-53:8; 82:22-24.

One of the alternative schools considered by the IEP team was the Pathway School, located in Norristown, Pennsylvania. The Pathway School is a private special education school for elementary and secondary students with autism, brain damage, learning disabilities, mental and physical handicaps, speech and language impairment, and social and emotional disturbance. Pathway is on the list of state-approved placements and was Garnet Valley's recommended placement for John Doe. First Am. Compl. ¶ 5; Reichert Dep. I 50:17-19; 51:18-52:1; 46:3-5.

After visiting its campus, Ms. Reichert agreed with her son's placement at the Pathway School, and in September 2008, John Doe began attending Pathway.*fn2 At the time of enrollment, John Doe was nine years of age. Ms. Reichert understood that her son would be one of the younger children on campus, and she knew there would be eleven-year-olds in his classes. Reichert Dep. I 54:21-55:11; Dep. Nina Prestia ("Prestia Dep.") 17:20-23; First Am. Compl. ¶ 9-11; Smith Dep. 56:12-16.

During the fall semester, John Doe took classes at the third-grade level, including a third-grade math class. He was the youngest student in the class. The oldest student was eleven years old. Prestia Dep. 17:17-20; 18:3-10.

Sometime during that semester, Ms. Reichert approached the Pathway School to request that John Doe be placed in the fourth-grade math class. Ms. Reichert felt that her son was not able to get instruction on his math level in the third-grade class. This request was put forth and consented to by John Doe's IEP team at a January 2009 meeting, which was attended by Ms. Reichert, a number of Pathway faculty, and Beverly Smith, special education director and local education agent (LEA) on behalf of the District. Prestia Dep. 32:17-33:18; Reichert Dep. II 10:24-11:16; Smith Dep. 29:14-30:1; 81:4-5, exh. 1 at 2.

Pathway's practice is to provide a waiver for the parent to sign, which would acknowledge parental consent to being in a class with students of older ages. Pathway provided Ms. Reichert with such a written waiver. However, Ms. Reichert never signed the waiver. Prestia Dep. 14:14-24; Dep. Angela D'Alessandro ("D'Alessandro Dep.") 27:13-22; Reichert Dep. II 15:4-12.

Ms. Reichert knew that there would be students in the fourth-grade math class up to thirteen years of age, but not up to fifteen years. With that knowledge, she gave permission for her son to enter the class during the spring semester. Specifically, Ms. Reichert signed a Notice of Recommended Educational Placement (NOREP) that corresponded to an IEP report noting an age difference of at least three years. She had a phone conversation with Pathway and District employees in which she gave oral permission to place John Doe in the older class.

She also provided written permission for him to sit with his classmates at lunch. Among John Doe's classmates in the advanced math class was a fifteen-year-old student: T.Y.*fn3

Reichert Dep. II 13:24-14:15; 11:3-13:8; Smith Dep. exh. 1 at 6 (January 2009 IEP Form); 2/7/09 Reichert Email (Def. Pathway School Mot. for Summ. J. exh. H).

Sometime during his time at Pathway, John Doe became acquainted with an older student referred to in the papers as T.Y.*fn4 John Doe and T.Y. first met in the schoolyard and began interacting with each other frequently, both at school and on the phone. The Pathway School was aware of this friendship. Dep. John Doe 5/9/12 ("Doe Dep. I") 10:16-18; 76:9-18; D'Alessandro Dep. 44:9-19.

At some point around winter break 2008, and lasting until May 2009, John Doe and T.Y. began having sexual encounters while on school grounds and during school hours. The sexual contact took place in different bathrooms around the school. The first encounter was involuntary; following the first time, the two met numerous times to have oral and anal sex.*fn5

The sexual encounters often took place in two bathrooms that were very close in proximity to the classroom of John Doe's homeroom teacher. On more than one encounter, John Doe left his homeroom class to go to the bathroom to meet T.Y., who had class in a different building and walked over to John Doe's building unaccompanied. The homeroom teacher's aide observed John Doe walking to the bathroom until John Doe shut the door. On several occasions, his teacher or her aide knocked on the bathroom door as John Doe and T.Y. were engaging in sexual acts but they were not discovered. John Doe was known by staff to regularly spend fifteen to thirty minutes in the bathroom. T.Y. Dep. 37:23-38:10; 63:8-15; 71:2-12; 80:15-81:1; Doe Dep. I 22:8-15, 29:10-14; 33:15-35:9; Doe Dep. II 50:9-52:8; 55:8-56:14; Jermaine Fisher Dep. ("Fisher Dep.") 40:24-41:5; 39:1-22.

The sexual acts ended on May 5, 2009, when Ms. Reichert discovered a journal entry written by John Doe stating that he had had sex with T.Y. Ms. Reichert thereafter notified the Pathway School, Children and Youth Services, and the West Norriton Police Department. Upon questioning, T.Y. admitted to police that he had had sexual encounters with John Doe. Reichert Dep. II at 22:9-20; 26:12-18; 29:6-15; 32:4-12; Mark Wassmer Dep. 32:4-9.

B. Defendant Garnet Valley School District's Involvement

The Garnet Valley School District was involved in the

decision to place John Doe at the Pathway School. It identified a list of appropriate schools that were approved by the Department of Education and the local county boards and brought them to Ms. Reichert's attention. The District recommended that Pathway School be the school of placement; it had placed at least one other student with the Pathway School and had no negative experiences there. Ultimately, John Doe's IEP team, which consisted of District employees and Ms. Reichert, made the decision to place John Doe at the Pathway School. The recommendation was then made to the superintendent's office, who gave oral approval to proceed. Smith Dep. 59:18-60:7; Reichert Dep. II 179:1-13; Dep. Michael Christian ("Christian Dep.") 21:2-20; 22:19-23; Tr. Hr'g 2/15/13 47:21-48:6.

Following John Doe's placement at Pathway, the District maintained some involvement in John Doe's day-to-day activities and made some decisions related to his education. First, whereas John Doe had a one-on-one aide at Bethel Springs, he no longer had an aide at Pathway.*fn6 According to District employees, Pathway instructed the District to revise the IEP and take the one-on-one aide off the IEP. Similarly, whereas John Doe used a private, one-person bathroom at Bethel Springs, he did not have such accommodations at Pathway. The decision to have a private bathroom at Bethel Springs resulted from reports that John Doe was climbing on stalls and looking at others. John Doe's actions were not perceived as sexual in nature by District employees*fn7 or Ms. Reichert, and they were not recounted to Pathway. Smith Dep. 61:12-71:8; Barbara Shaw Dep. ("Shaw Dep.") 86:10-87:7; 90:13-91:1.

In addition, beginning in January 2009, the District hired a paraprofessional to ride with John Doe on the bus to Pathway. Ms. Reichert was informed that the District hired a paraprofessional because John Doe was having "increasing issues" on the bus. The paraprofessional was instructed by Beverly Smith to "just write the behaviors down." The paraprofessional had noticed a pattern that John Doe's sexual behaviors were increasing but, abiding by her instructions from Ms. Smith, made notes only as to her observations of behaviors and did not note that the behaviors seemed to be increasing. Dep. Marian Seidman 37:11-23; Reichert Dep. I 119:17-120:1.

Finally, the District maintained involvement with John Doe through its role at his IEP meetings. Ms. Smith, as an LEA, was involved in the IEP team decision to move John Doe to the higher-level math class. During the team meeting, Ms. Smith did not inquire about the age of the older students and she did not know that a fifteen-year-old was in the class. She did not bring up her knowledge of John Doe's behavior in the bathroom while at Bethel Springs. Smith Dep. 80:22-81:5; 83:1-23; 131:3-8. See also Section C.1 infra.

C. Defendant Pathway School's Involvement

The plaintiff has made two primary allegations of negligence against the Pathway School. First, she argued that Pathway was negligent in placing John Doe in a classroom with a fifteen-year-old student without written informed parental consent. Second, she argues that Pathway was negligent in failing to supervise John Doe and T.Y. ...


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