DOMINIC J. WHITHAM; KIMBERLY A. WHITHAM; and BENJAMIN F. WHITHAM, Appellants (Plaintiffs),
DENISE FELLER; KERRI BOGGIO; JEROLD HAIRE; and PARK COUNTY SCHOOL DISTRICT #1, Appellees (Defendants).
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.
BURKE, C.J., and HILL [*] , DAVIS, FOX, and KAUTZ, JJ.
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).
The Whithams present the following issues, which we restate
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.
The Whithams filed a complaint against the appellees,
alleging thirty counts related to six-year-old Benjamin's
treatment at school. 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)).
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.
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
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.
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
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 ...