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Collins v. Dutton

Superior Court of Delaware, Sussex

November 14, 2019

Theresa Collins and Kelly Collins
Derek Dutton, The Board of Education of Cape Henlopen School District, Superintendent Robert Fulton, Principal Nikki Miller and Brian Donohue

         Dear Counsel:

         This is my decision on the respective Motions to Dismiss filed by Defendant Derek Dutton ("Dutton"), and Defendants Superintendent Robert Fulton ("Fulton"), Principal Nikki Miller ("Miller"), Brian Donahue ("Donahue"), and the Board of Education of Cape Henlopen School District (individually, the "Board," and collectively with Fulton, Miller, and Donahue, the "School Defendants").

         This litigation involves an alleged sexual assault on the Plaintiff Theresa Collins ("Theresa") by Dutton at Cape Henlopen High School in 2015. Plaintiff Kelly Collins ("Kelly") is Theresa's younger sister. The Plaintiffs' Second Amended Complaint contains numerous intentional tort and negligence claims against the Defendants in connection with the sexual assault.

         The School Defendants have moved to dismiss all of the claims asserted against them in the Second Amended Complaint. Dutton's Motion seeks dismissal of all claims against him except for Theresa's assault and battery claims. After consideration of the relevant law and the arguments offered by the parties, I find that the School Defendants' Motion to Dismiss should be GRANTED. Specifically, I find that: 1) Theresa's Title IX claim is untimely; 2) the School Defendants cannot be held vicariously liable for the intentional torts of Dutton in this case; and that 3) the School Defendants could not have reasonably foreseen Dutton's sexual assault of Theresa. With regard to Dutton, I have determined that his Motion to Dismiss should be GRANTED IN PART and DENIED IN PART. The negligence claims asserted against Dutton should be dismissed because the Second Amended Complaint, as written, only contains allegations of negligence on behalf of the School Defendants. However, I find that Theresa's claims for intentional and negligent infliction of emotional distress warrant additional discovery making dismissal inappropriate at this stage.

         I. BACKGROUND[1]

         The incident between Dutton and Theresa occurred at Cape Henlopen High School in 2015. The Board of Education of the Cape Henlopen School District is a reorganized school board operating under 14 Del. C. § 1043 and the governing body of the Cape Henlopen School District. At the times relevant to the current case, Theresa and Kelly were students attending Cape Henlopen High School in Sussex County, Delaware.

         Up until at least October 2015, Dutton was a staff member and employee of the Cape Henlopen School District working primarily in the school theater.[2]Several instances of Dutton's interactions with students and colleagues had been brought to the attention of the Board and other school officials prior to the incident with Theresa. The first report occurred in December 2011, when a student alerted the Board that Dutton had called him a "pathetic asshole."

         In October 2014, a female intern for Ms. Martha Pfeiffer ("Pfeiffer"), the school's theater director, reported that Dutton, in response to witnessing the intern's wet blouse, had said "Well, you know we all like you better when you're wet" and winked at her. At Pfeiffer's direction, the intern reported this incident to then Principal of Cape Henlopen High School Donahue. Also in October 2014, Fulton and the Board were made aware that Dutton had used a racial slur when speaking to a Jewish student.[3] Then, in November 2014, Pfeiffer informed Fulton and the Board of the female intern's complaint and that Dutton had called a redheaded student "fiery."

         On April 20, 2015, Theresa, then a 17 year old junior at Cape Henlopen High School, reported to a vice principal that Dutton had thrown a power drill that had come "within an inch" of hitting another student in the head. A few days later, on April 22, 2015, Theresa encountered Dutton in the theater as she was coming to rehearse for an upcoming school musical. According to Theresa, Dutton reached down the back of her jeans and touched her underwear and buttocks. After this incident, Theresa felt unsafe and went to her car to cry.

          On May 12, 2015, Theresa filed an incident report to the school with regard to her interaction with Dutton on April 22, 2015. On that same day, a female high school senior filed a separate incident report alleging that Dutton had asked her "How good do you fuck?" on March 9, 2015, while she was preparing a monologue for a Shakespeare competition. Both Theresa and the female senior met with then Vice Principal Miller on May 13, 2015, where they were assured that the police would be notified and the matter taken care of. Subsequently, Theresa's parents, Virginia and Stephen Collins, also contacted then Principal Donahue and then Superintendent Fulton regarding the incident with their daughter. They were told that Theresa's allegations were being investigated and that Dutton would not be allowed on campus while students were present.

         However, on October 14, 2015, Theresa, then a senior, encountered Dutton in the school parking lot. Seeing Dutton upset her greatly, and she told her parents about this incident. Thereafter, Virginia Collins contacted Fulton. She was told that he would talk to the school administration and find out why Dutton was still allowed on school property. A couple of months later, on December 17, 2015, Theresa's parents attended a parent-teacher conference where they again saw Dutton working in the school theater.

         Theresa's parents wrote a letter to the Board on January 26, 2017, notifying them that Dutton was still allowed to work on school property while students were present despite the previous reports of his inappropriate behavior. On December 12, 2017, Kelly, then a junior, encountered Dutton working in the school theater. Kelly informed her teacher that Dutton's presence made her uncomfortable. On March 7, 2018, Kelly again witnessed Dutton working in the theater. Soon thereafter, Virginia and Stephen Collins met with Kelly's guidance counselor, the theater director, and then Principal Miller to inform them that Kelly was withdrawing from the theater program because she felt unsafe due to Dutton's presence on school property.

         The Plaintiffs have alleged numerous failures on behalf of the School Defendants in responding to the allegations of Dutton's misconduct. For example, they point out that, in April 2018, the Board's school resource officer was unable to locate the May 12, 2015, reports of Dutton's sexual abuse and harassment. Additionally, the School Defendants did not report the allegation of sexual abuse to either the Division of Child Protective Services or the Delaware State Police.

         This action was originally filed by the Plaintiffs on January 23, 2019. The Plaintiffs' Second Amended Complaint (the "Complaint") was filed on May 23, 2019. The School Defendants moved to dismiss the Complaint on June 3, 2019. Dutton filed his Motion to Dismiss on August 2, 2019.


         On a motion to dismiss for failure to state a claim under Superior Court Civil Rule 12(b)(6), "all well-pleaded allegations must be accepted as true."[4] The motion must be denied if the plaintiff could "recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[5] The Court must read the complaint generously and view all well-pleaded allegations in a light most favorable to the plaintiff.[6] Dismissal is warranted only when "under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted."[7]


         The Complaint contains ten counts against the Defendants for various wrongs suffered by Theresa and Kelly stemming from Dutton's alleged sexual assault of Theresa at Cape Henlopen High School. In response to the Defendants' Motions to Dismiss, the Plaintiffs have dropped several of the claims contained in the Complaint. I will begin my analysis with the claims against the School Defendants and follow with consideration of the claims against Dutton.

         A. Claims Against the School Defendants

         The Complaint asserts claims against the School Defendants in some capacity in ten separate counts. In the Plaintiffs' Response to the School Defendants' Motion to Dismiss, the Plaintiffs agreed to dismiss Counts VII through X.[8] The remaining claims against the School Defendants in this dispute are as follows: Violation of Title IX of the Educational Amendments Act of 1972 against the Board (Count I); assault and battery against the Board (Count II); gross negligence against the School Defendants (Count III); gross negligence on theory of premises liability against the Board (Count IV); intentional infliction of emotional distress ("IIED") against the Board (Count V); and negligent infliction of emotional distress ("NIED") against the Board (Count VI). The claims contained in Counts I and IV against the Board are asserted by both Theresa and Kelly. All other claims are being advanced by Theresa alone. The School Defendants have moved to dismiss all claims against them.

         i. Theresa and Kelly's Title IX Claim Against the Board

         In their Motion to Dismiss, the School Defendants assert that any Title IX claim based upon events that occurred in 2015 is untimely. Specifically, they argue that the relevant statute of limitations period for a Title IX claim is two years in Delaware and that the last interaction between Dutton and Theresa occurred in April 2015. In response, the Plaintiffs claim that the applicable statute of limitations for their Title IX claim is the Delaware Child Victims Act, which establishes that civil actions based on the sexual abuse of a child have no statute of limitations. They also argue their Title IX claims accrued when they had reason to know that the School Defendants' deliberate indifference and mishandling of Dutton attributed to the sexual assault, not when the sexual assault actually occurred. Finally, the Plaintiffs point out that Kelly's Title IX claim falls within the limitations period asserted by the School Defendants. The School Defendants reply by asserting that a Title IX claim accrues at the time of the alleged abuse.

         When faced with a Title IX claim, I must apply the most analogous state statute of limitations.[9] This is generally the state personal injuries limitations period, which is two years in Delaware.[10] However, the Plaintiffs argue that, in this instance, the most analogous statute of limitations comes from the Delaware Child Victims Act (the "CVA"). The CVA provides, in pertinent part, as follows:

(a) A cause of action based upon the sexual abuse of a minor by an adult may be filed in the Superior Court of this State at any time following the commission of the act or acts that constituted the sexual abuse. A civil cause of action for sexual abuse of a minor shall be based upon sexual acts that would constitute a criminal offense under the Delaware Code.[11]

         The Plaintiffs fail to provide any case law in support of their novel theory that a Title IX claim involving the sexual abuse of a minor has no statute of limitations in Delaware. This is not altogether surprising as the CVA became effective relatively recently in Delaware on June 30, 2009, and only two other states, Minnesota and New York, have since enacted similar statutes. I have likewise been unable to locate a judicial opinion in any of the relevant jurisdictions addressing the particular issue raised in this case. For my analysis, I must acknowledge the potential ramifications of eliminating the statute of limitations for Title IX claims in Delaware involving the sexual abuse of a minor. This would have a significant impact on both the Courts and countless educational institutions and programs in this state. Such a decision cannot be made lightly; it necessitates a careful consideration of the language and purpose of both Title IX and the CVA.

         Title IX provides, in pertinent part, that "[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."[12] Title IX encompasses sexual harassment of a student by a teacher and is enforceable through an implied private right of action for damages against a school district.[13] The United States Supreme Court has held that, in order for a school district to be liable under Title IX for the sexual harassment of a student by one of its teachers, it must be shown that "an official of the school district who at a minimum ha[d] authority to institute corrective measures on the district's behalf ha[d] actual notice of, and [was] deliberately indifferent to, the teacher's misconduct."[14] "Actual notice" must amount to "actual knowledge of discrimination in the recipient's programs."[15] Further, "the response must amount to deliberate indifference to discrimination . . . The premise, in other words, is an official decision by the recipient not to remedy the violation."[16]

         The foregoing makes clear that a Title IX claim does not necessarily arise from an incident of sexual harassment/abuse alone. Rather, such a claim is based on a school district official's actions or inactions in response to receiving actual notice of a danger posed by a school employee. The failure to adequately protect against, or respond to, an employee's misconduct is the wrong that a Title IX claim seeks to remedy. Thus, in the current matter, while Dutton's alleged touching of Theresa may have provided the impetus for the Plaintiffs' suit against the Defendants in general, the act itself, independent of circumstance, is insufficient as a basis for a Title IX claim. The Plaintiffs' inclusion of allegations in the Complaint that the School Defendants had knowledge that Dutton posed a danger to female students before the incident, and that Dutton continued to be seen on school grounds after the incident was reported, shows that the Plaintiffs are aware of the need to establish such facts in order to prove a violation of Title IX occurred.

         Theresa's Title IX claim is necessarily based on the School Defendants' alleged failure to appropriately supervise, investigate, or manage Dutton's potential interactions with Theresa after her allegation of sexual assault. Said claim is not, and indeed cannot be based primarily upon the alleged sexual abuse of Theresa by Dutton. I therefore reject the Plaintiffs' contention that the CVA represents the appropriate statute of limitations for Theresa's claim. In order for her Title IX claim to be timely, it must have been brought within two years of its date of accrual.

         Having determined the appropriate statute of limitations for Theresa's Title IX claim, I now turn to the issue of when that claim accrued. A Title IX claim accrues when a student knows or has reason to know of the injury upon which the claim is based.[17] As previously discussed, Theresa's Title IX claim is based on the School Defendants' failure to appropriately handle the allegation that Dutton sexually assaulted Theresa. This failure should have been apparent to Theresa when she encountered Dutton in the school parking lot on October 14, 2015, several months after reporting the sexual assault to school officials and receiving assurances that Dutton would not be allowed on campus while students were present. If that was not enough, Theresa's parents later encountering Dutton working in the school theater while students were present on December 17, 2015, should have certainly put the Plaintiffs on notice of the School Defendants' deliberate indifference to Theresa's allegation. Accordingly, Theresa's Title IX claim accrued on October 14, 2015, or, at the very latest, on December 17, 2015. I need not decide which date is more appropriate as the Plaintiffs' initial complaint was filed on January 23, 2019, making any Title IX claim arising before January 23, 2017, untimely. Thus, I find that Theresa's Title IX claim is time barred and should be dismissed.

         The School Defendants have also moved to dismiss Kelly's Title IX claim. For their part, the Plaintiffs argue that Kelly's claim is timely under a two year statute of limitations because her claim accrued on December 12, 2017, when she witnessed Dutton working in the school theater. I find that any timeliness argument is irrelevant as the Plaintiffs have failed to allege sufficient facts to support a Title IX claim against the School Defendants on behalf of Kelly. It is unfortunate that Kelly felt the need to withdraw from the theater program due to understandable discomfort from being around the person accused of sexually assaulting her sister. However, the Complaint contains no allegations that Dutton sexually harassed Kelly or even interacted with her at all. Ultimately, if the facts alleged in the Complaint are sufficient to support Kelly's claim then any student simply aware of a rumor or allegation of sexual assault against an employee of the school they attend could conceivably bring a valid claim under Title IX. Such a result clearly exceeds the intended scope of Title IX. Therefore, I also find that the School Defendants are entitled to dismissal of Kelly's Title IX claim.

         ii. Theresa's Assault and Battery Claims Against the Board

         The School Defendants have moved to dismiss the assault and battery claims against the Board in Count II. They argue that such claims are subject to a two-year statute of limitations and that the Board cannot be found liable for the assault and battery of an employee under a theory of respondeat superior. The Plaintiffs counter by pointing out that Theresa's assault and battery claims are based on the sexual abuse of a child and therefore have no statute of limitations under Delaware law. Further, they posit that the Board is responsible for torts committed by Dutton pursuant to respondeat superior or vicarious liability through Restatement (Second) of Agency § 219.

         As a preliminary matter, I find that Theresa's assault and battery claims, if legally sustainable against the board through either respondeat superior/vicarious liability, are subject to an unlimited statute of limitations pursuant to the CVA. The alleged illegal touching was sexual in nature and occurred when Theresa was 17 years old.

         Under Delaware law, an employer can be found liable for torts committed by employees while acting within the "scope of their employment."[18] In determining whether an employee acted within the scope of his or her employment, Delaware courts utilize a four-factor test pursuant to Restatement (Second) of Agency § 228.[19] The four factors for consideration of the conduct of the employee are whether:

         (1) It is of the kind he is employed to perform;

         (2) it occurs within the authorized time and space limits;

         (3) it is activated, in part at least, by a purpose to ...

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