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Pike v. Calcasieu Parish School Board

Court of Appeals of Louisiana, Third Circuit

May 15, 2019



          H. Alston Johnson III Kevin W. Welsh Phelps Dunbar, LLP COUNSEL FOR DEFENDANT/APPELLANT: Calcasieu Parish School Board

          Vernon Ed McGuire, III Plauché, Smith & Nieset COUNSEL FOR DEFENDANT/APPELLANT: Calcasieu Parish School Board

          Somer G. Brown Cox, Cox, Filo, Camel & Wilson, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLEES: Denee Ashley Pike Trent Pike Denee Ashley Pike obo minor son B.P. Trent Pike obo minor son B.P.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.


         The Calcasieu Parish School Board appeals the trial court's grant of the Motion for Judgment Notwithstanding the Verdict (JNOV) filed by Appellees, Denee and Trent Pike, individually and on behalf of their minor child, B.P.[1] For the reasons that follow, we affirm in part, as amended, reverse in part, and remand for further proceedings.


         The Pikes filed suit against the school board over incidents on the school bus that involved B.P. during his first-grade year. The matter proceeded to trial by jury, during which the following evidence was adduced.

         B.P. was a first grader at Bell City High School (Bell City) at the beginning of the 2013 school year, when he and two other boys, K.M. and G.L., engaged in sexual activity on a school bus driven by Mr. John Keller. Before these incidents, all three boys had been repeatedly disciplined by Mr. Keller for disruptive behavior on the bus. Initially, Mr. Keller sat the three boys at the front seat to his right, where he could best observe them. However, because of some poor conduct on the part of some girls on the bus, Mr. Keller moved the three boys into the seat immediately behind him.

         None of the three boys testified at trial, but other evidence showed that, at least, the boys displayed their genitals to each other and "put their mouths on" each other's genitals. One of the boys, G.L., told the Child Advocacy Center forensic interviewer that K.M. and B.P. inserted their penises in each other's "butts."

         Around this time, B.P.'s mother claimed that she began to notice changes in his behavior. His teacher reported to Mrs. Pike that B.P. was disruptive and violent. B.P. begged his parents to take him to school instead of making him ride the bus. He began to have afternoon "accidents" at school so that his parents had to pick him up. The Pikes took B.P. to counseling with Ms. Rachel Hinton in September 2013. They also asked B.P.'s primary care physician to determine whether there was some physiological cause of his "accidents."

         In October 2013, B.P.'s plight came into focus when he told his mother that K.M. had put his mouth on B.P.'s penis. Mrs. Pike went to Bell City and spoke to Mr. Russell Abshire, the assistant principal in charge of elementary school discipline. Mr. Abshire interviewed all three boys. All agreed that the incidents were initiated by K.M., who was ten years old at the time; B.P. and G.L. were six. Mr. Abshire did not notify law enforcement authorities of the incidents.

         Mrs. Pike did notify the authorities. The boys were interviewed by a forensic interviewer with the Child Advocacy Center as part of the Calcasieu Parish Sheriff's investigation of the matter. Again, there was no dispute that the incidents were initiated by K.M. Neither Mr. nor Mrs. Pike really know what took place on the bus and had been admonished by the forensic interviewer that it would be best for them to not discuss the incident or incidents with B.P.

         K.M. had a history of behavioral challenges during his tenure at Bell City. Some of these challenges involved incidents that might be described as bathroom humor; others, though, were more overtly sexual in nature, including an occasion on which K.M. was found to have unfastened his pants on the playground and was attempting to engage another student to emulate his behavior so that they could "have sex." The other boy declined and informed a teacher. K.M. was also known to occasionally crawl beneath bathroom stalls while other children occupied them. As a result of the incident at issue, K.M. was expelled from Bell City to continue his education at an alternative school.

         Before Mrs. Pike discovered what had occurred on the bus, she and her husband arranged for B.P. to receive counseling for his behavior issues at school. B.P.'s initial counselor was Ms. Rachel Hinton. Ms. Hinton first saw the Pikes on September 6, 2013. His mother confided in Ms. Hinton that B.P. was becoming angrier and overreactive to unpleasant circumstances, and that this behavior had arisen about six months before. On October 8, Mrs. Pike told Ms. Hinton that another student had asked B.P. to show him his genitals. Ms. Hinton taught B.P. about declining uncomfortable invitations and "safe touching."

         On October 17, 2013, Mrs. Pike told Ms. Hinton about what she had learned about K.M. putting his mouth on B.P.'s privates. Ms. Hinton attempted to engage B.P. in a discussion about the incident, but he did not want to talk about it. B.P. asked Ms. Hinton to leave the room and informed his mother that a similar incident had also occurred with a friend or cousin at home.

         By November 5, 2013, B.P. was much improved, but continued to have some issues. However, in December 2013, Ms. Hinton noted in her records that there was no need for continued appointments because the Pikes had not seen her in some time. Ms. Hinton observed that for the rest of their lives, victims of sexual abuse will encounter situations that dredge up their experiences.

         After they learned of the issues on the bus, the Pikes took B.P. to counseling with Ms. Jodi Underwood. Ms. Underwood first saw B.P. on February 25, 2014, and treated him for three sessions, the last on April 8, 2014. Ms. Underwood did not testify at trial, but her records were introduced into evidence.

         Thereafter, B.P. was treated by Mr. Ray Melerine, a licensed professional counselor who contracted with the school board to provide counseling services primarily for elementary school children. Mr. Melerine opined that the power differential between the older child, K.M., and the younger children, B.P. and G.L., vitiated B.P.'s consent, even if B.P. actively participated in the activity. B.P. had only confided in Mr. Melerine that an older child had "hurt" him and that he was angry about it. However, his records indicate that B.P. had never been raped. Mr. Melerine acknowledged that B.P. engaged in disruptive behavior at school before these occurrences, but that afterward, those disruptive behaviors escalated. He also opined that B.P. is at increased risk of engaging in activities similar to those that took place on the bus. Mr. Melerine treated B.P. at least monthly through December 6, 2015, and has seen him occasionally since, totaling four counseling sessions. He opined that B.P. will need two to three sessions of counseling until he turns eighteen and probably once a month thereafter.

         B.P. was seen on March 29, 2017, by his primary care doctor, Dr. Keane O'Neal. Mrs. Pike told Dr. O'Neal that B.P. was experiencing anger management issues, for which Dr. O'Neal prescribed Paxil. On May 11, 2017, Mrs. Pike brought B.P. in with continued anger issues that she feared were not being adequately addressed by the Paxil. Dr. O'Neal switched B.P. to Zoloft.

         The Pikes both testified about how this situation has altered B.P.'s personality. B.P. has lost a certain amount of confidence he had before. He goes periods in which he seems to do fine until something happens to remind him, after which he will experience a setback that can last for a while, usually assisted by counseling with Mr. Melerine. Mr. Pike admitted, though, that in his deposition taken in June 2016, he stated that he no longer saw any lingering effects from the bus incidents.

         In support of their demands for damages for loss of consortium with their son, the Pikes both testified that they have lost faith in the school system. They felt their son was entitled to protection that he did not receive. They testified that what happened on the bus wrought changes in B.P.'s personality.

         The Pikes also introduced the testimony of Ms. Stephanie Chalfin, a vocational rehabilitation counselor and life care planner. Ms. Chalfin was asked to prepare a life care plan for B.P. that assumed that he would require three counseling sessions a month until he reached age 18 and periodically thereafter. She was also asked to assume that B.P. was not able to return to school in the Calcasieu Parish School System, but would instead attend St. Margaret's, a private Catholic elementary and middle school B.P. had been moved to, and St. Louis, a Catholic high school. Ms. Chalfin opined that B.P. would require $98, 744.00 to facilitate his lifelong counseling and schooling through high school graduation.

         Ms. Kristi Thibodeaux, B.P.'s first grade teacher at Bell City, testified for the school board. B.P.'s behavior from the beginning of first grade was challenging to the point that conferences with Mr. Abshire and Mrs. Pike were held twice. Mrs. Pike expressed her opinion that B.P. was very gifted academically and was probably just bored with school. Ms. Thibodeaux, however, testified that she engages her first graders with almost constant work, so opportunities for boredom never present themselves. Further, B.P.'s challenging behaviors were consistent whether in the classroom, at recess, or in the bathroom. These conferences with Mr. Abshire and Mrs. Pike did not improve B.P.'s behavior. Mrs. Thibodeaux confirmed Mrs. Pike's testimony about B.P. wetting his pants in September and October 2013.

         The jury returned a verdict in favor of the Pikes and awarding damages as follows:

B.P.'s general damages $62, 500.00
Mr. and Mrs. Pike's loss of consortium $ 0.00
B.P.'s tuition at St. Margaret $10, 000.00
B.P.'s future treatment $19, 000.00
B.P.'s future tuition expenses $20, 000.00

         The jury assessed 50% fault to the school board and 50% to K.M.

         The Pikes filed a motion for JNOV, which the trial court granted on January 31, 2018. In its ruling, the trial court held the school board vicariously liable for K.M.'s acts, citing as authority La.Civ.Code art. 2320, which states in pertinent part, "Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their supervision." The article further provides that this liability attaches when the "teachers. . .might have prevented the act which caused the damage, and have not done it." Indeed, the trial court further stated that the school board "failed in its obligation to properly supervise KM and to protect BP." The trial court found that the jury's award was abusively low, and, conducting a de novo review of the evidence, increased the award to B.P. to $500, 000.00. The failure to award the Pikes any sum for the loss of consortium claim was also found by the trial court to be an abuse of discretion, and the trial court awarded them $20, 000.00; however, by operation of La.R.S. 13:5106, the total in general damages that could be assessed against the school board was $500, 000.00. The other sums awarded by the jury were allowed to stand. The school board urged that the sums for future treatment be placed in a reversionary trust and that the general damage sum awarded to B.P. also be placed in trust. The judgment did not order that any sums be placed in trust.


The school board urges the following as errors:
The trial court erred in granting the plaintiffs' motion for JNOV and vacating the jury verdict.
Regardless of whether the trial court erred in granting the plaintiffs' motion for JNOV, it erred in the judgment which it then entered by failing to place the award to the minor child in trust and in failing to place the award of future medical expenses in a reversionary trust without judicial interest on that sum.
In the alternative, if the trial court did not err in granting the plaintiffs' motion for JNOV, it erred in the judgment which it then entered by increasing the award to the minor child for "past and future general damages" from the jury's award of $62, 500 to $500, 000.
In the alternative, if the trial court did not err in granting the plaintiffs' motion for JNOV, it erred in the judgment which it then entered by concluding that the school board is vicariously liable for the intentional conduct of a ten-year-old fellow student of the minor child.
In the alternative, if the trial court did not err in granting the plaintiffs' motion for JNOV, it erred in the judgment which it then entered by concluding that the school board had breached its duty with respect to the plaintiffs' minor child and thus erred in assigning any fault to the school board with respect to its own conduct.


         The granting of a JNOV is governed by La.Code Civ.P. art. 1811, which gives a trial court latitude to allow a verdict to stand or to reopen the judgment and grant a new trial or render a JNOV. The article does not establish a standard for granting a JNOV or in reviewing a JNOV on appeal; those have been supplied by the courts.

[I]n Anderson v. New Orleans Public Service, Inc., et al, 583 So.2d 829 (La.1991)[, ] [t]he supreme court discussed standards and guidelines applicable to trial courts and appellate courts in granting and reviewing judgments N.O.V. and stated:
"Once a trial court has concluded that a JNOV is warranted because reasonable men could not differ on the fact that the award was either abusively high or abusively low, it must then determine what is the proper amount of damages to be awarded. In making this determination, the judge is not constrained as the courts of appeal are to raising (or lowering) the award to the lowest (or highest) point which is reasonably within the discretion afforded that court. Coco v. Winston Industries, Inc.,341 So.2d 332 (La.1976). We are aware of some decisions which indicate that the trial judge should be limited by that constraint. SeeWest v. Melancon,507 So.2d 1250 (La.App. 4th Cir.1987), Barfield v. Jacobs, 527 So.2d 555 (La.App. 3d Cir.1988), Zeagler v. Dillard Department Stores, Inc.,521 So.2d 766 (La.App. 2d ...

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