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Whitham v. Feller

Supreme Court of Wyoming

April 30, 2018

DOMINIC J. WHITHAM; KIMBERLY A. WHITHAM; and BENJAMIN F. WHITHAM, Appellants (Plaintiffs),
v.
DENISE FELLER; KERRI BOGGIO; JEROLD HAIRE; and PARK COUNTY SCHOOL DISTRICT #1, Appellees (Defendants).

          Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge

          Representing Appellants: William K. Struemke of Serviam Legal Services, LLC, Cody, Wyoming.

          Representing Appellees: Tracy J. Copenhaver of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming.

          Before BURKE, C.J., and HILL [*] , DAVIS, FOX, and KAUTZ, JJ.

          KAUTZ, JUSTICE.

         [¶1] Appellants Dominic J. Whitham and Kimberly A. Whitham are the parents of Appellant Benjamin F. Whitham (hereinafter referred to collectively as "the Whithams"). The Whithams filed a complaint against Appellees Park County School District #1 (school district) and school district employees Denise Feller, Kerri Boggio and Jerold Haire (hereinafter referred to collectively as "the appellees"). The Whithams alleged the school district employees had committed various torts against them and the school district was liable for the employees' actions under the doctrine of respondeat superior. The Whithams also claimed the school district had committed direct acts of negligence. The district court dismissed the case under W.R.C.P. 12(b)(6), concluding from the allegations in the Whithams' complaint, the appellees were immune from suit under the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 through 1-39-121 (WGCA).

         [¶2] We affirm.

         ISSUES

         [¶3] The Whithams present the following issues, which we restate as:

1. Whether the district court properly granted the appellees' Rule 12(b)(6) motion to dismiss because they were immune from suit under the WGCA.
2. Whether the district court properly dismissed the complaint with prejudice.

         FACTS

         [¶4] The Whithams filed a complaint against the appellees, alleging thirty counts related to six-year-old Benjamin's treatment at school.[1] Given this case was resolved by dismissal under Rule 12(b)(6), we consider the facts alleged in the complaint as true and view them in the light most favorable to the Whithams. The Tavern, LLC v. Town of Alpine, 2017 WY 56, ¶ 21, 395 P.3d 167, 173 (Wyo. 2017) (citing Elworthy v. First Tennessee Bank, 2017 WY 33, ¶ 20, 391 P.3d 1113, 1119 (Wyo. 2017)).

         [¶5] Counts 1 through 4 pertained to an incident which took place at Clark Elementary School in Park County, Wyoming on October 23, 2015. Ms. Feller restrained Benjamin when he ran into the hallway and would not release him to let Mr. Whitham in the building. Benjamin expressed pain while in the hold, and Ms. Feller told Mrs. Whitham she did not think she had performed the hold correctly. The Whithams asserted Ms. Feller's actions amounted to negligence, battery, and child endangerment. They claimed Ms. Feller was acting in her "official capacity" as a teacher for the school district and within the scope of her employment or agency, making the school district liable for her actions under the doctrine of respondeat superior.

         [¶6] Counts 5 through 8 pertained to an incident on November 2, 2015, at Clark Elementary School. In those counts, the Whithams claimed the school district directed Ms. Boggio to observe Benjamin's behavior at school, and she was "suggested (sic) [to] let [Benjamin] run[, ] don't chase - call cops if he goes out of school grounds (aides will not deal with him)." She let him go "no limits" in the gymnasium, allowing him to climb on chairs and tables and over a wall into the library. Ms. Boggio finally restrained Benjamin, but did not give his parents written notice of the hold as required by district policy.

         [¶7] Ms. Boggio allegedly told Mr. Whitham that Benjamin had threatened her with a stick, so she had taken the stick away and told him she would "hit him back with it." Mr. Whitham also alleged that while he was placing the child in his car seat, Ms. Boggio opened the door of the Whithams' car without permission and rummaged through the items in the front seat of the vehicle. Based on these incidents, the Whithams asserted Ms. Boggio had committed civil trespass, negligence and assault. They claimed Ms. Boggio was acting in her "official capacity as a teacher, " and the school district was liable under respondeat superior for her actions because she was acting within the scope of her employment or agency.

         [¶8] Counts 9 through 15 pertained to incidents that allegedly occurred on November 5, 2015, at Clark Elementary School. The Whithams pled that Mr. Haire was sent to observe and videotape Benjamin's behavior. He allowed the child to climb on tables in the gymnasium; climb through a service window into the kitchen; climb on the stove, countertops and center island; access food service items, including utensils, sharp knives and ceramic mugs; and throw the food service items across the kitchen. The Whithams alleged Mr. Haire eventually "attacked" Benjamin by pushing a wheeled service tray straight at him, kicking a large metal bowl at him, and "dumping" two large rolls of plastic on his head. They also asserted Mr. Haire showed the confidential video throughout the school. The Whithams further claimed Ms. Feller was Benjamin's custodian during the incident and did nothing to protect him. The Whithams asserted claims of negligence, child endangerment, and assault against Mr. Haire and negligence and child endangerment against Ms. Feller. They claimed both employees acted in their official capacities and their actions were attributable to the school district, making it liable under respondeat superior.

         [¶9] Counts 16 through 25 pertained to incidents that occurred at the Powell Special Services Building on February 26, 2016. The Whithams alleged Ms. Boggio and Mr. Haire had a conversation about a "thing [they] were planning" involving Benjamin. Later that day, they restrained Benjamin, allegedly hurting him. Ms. Boggio reported to law enforcement that Benjamin "was suicidal and a danger to himself and others, " and he was taken into protective custody. Based on the events of February 26, 2016, the Whithams asserted causes of action against Ms. Boggio for false reporting, intentional infliction of emotional distress, negligence, battery, and child endangerment and against Mr. Haire for intentional infliction of emotional distress, negligence, battery, and child ...


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