CHARLESTON — The state Supreme Court has reversed the dismissal of a Harrison County lawsuit regarding a transgender teenager who was harassed by his high school's assistant principal in 2018.
In the majority opinion issued June 17, Chief Justice Evan Jenkins said the court affirmed in part and reversed the circuit court's order dismissing the claims for negligence per se and reversed the court's order dismissing the claim for negligent retention.
"This is a landmark case, and the significance of it – especially during Pride Month – is that other school officials are on notice of their duty to protect all kids," attorney Teresa Toriseva told The West Virginia Record. "And if they don't, the local school boards will answer for it in court.
Toriseva
"It also lets students know they are worthy to be treated with dignity and respect as public school students, and the law demands it."
Justices Tim Armstead, John Hutchison and Bill Wooton concurred in part and dissented in part, and each authored a separate opinion.
The case was brought on behalf of Michael Critchfield, a student at Liberty High School in Clarksburg who says he had to endure abusive treatment from Assistant Principal Lee Livengood.
Caroline and Jon Critchfield filed the complaint on behalf of the minor in 2019 in Harrison Circuit Court against the county Board of Education.
In the dismissal order, Judge Christopher McCarthy wrote that while the plaintiffs could survive the bar of immunity in the case against the board with a negligence claim, they failed to allege negligent conduct and instead, cited Livengood's intentions as intentional.
In the complaint, the plaintiffs say the child and parents met with Liberty High School officials prior to his freshman year to tell them the transgender boy preferred to be referred to by his chosen name, that his pronouns were “he,” “his” and “him” and that he planned to use the boy's restroom.
On Nov. 27, 2018, the complaint says the teen needed to use the restroom after school before a trip to Morgantown with the school band. He went to the boy's restroom near the school cafeteria. Livengood followed Critchfield into the boy's bathroom, held the student against his will, berated him for using the boy's bathroom and demanded he “come out here and use the urinal” to prove he’s a boy.
The parents say they spoke with school administrators within 24 hours of the incident. Livengood was suspended by the school board shortly after the incident, but he eventually returned to the job.
The lower court dismissed the Critchfield complaint, ruling that the plaintiffs had not demonstrated injuries or damages from the board's decision to retain the assistant principal, but the Supreme Court said the plaintiffs did state a valid claim for negligent retention.
"Accordingly, we conclude that the Petitioners have stated a claim for negligent retention sufficient to survive the Board’s motion to dismiss this claim ... and, thus, we reverse the circuit court’s order to the extent that it dismissed the Petitioners’ negligent retention claim," Jenkins wrote. "We further remand this case for reinstatement of that portion of Count 6 of the Petitioners’ complaint alleging a claim against the Board for negligent retention."
Armstead wrote in his separate opinion that while he agreed that the assistant principal's conduct was inappropriate, he wondered why the plaintiffs chose not to name him as a defendant in the case.
"Certainly, any party may choose to name, or decline to name, any party in civil litigation, and such decisions are certainly within the purview of the respective client and his or her legal counsel," Armstead wrote. "It is not for this Court to second guess those decisions. However, by naming only the Harrison County Board of Education, Petitioners must accept that the ability to prove their case against the Board may be governed by different statutory and common law standards."
Armstead wrote that he believed the circuit court was correct to dismiss the complaint.
"Accordingly, I concur in the majority’s opinion insofar as it finds that the Petitioner does not assign error in the circuit court’s dismissal of all claims other than those raised in Counts 5 and 6, and that such other Counts are not presently before us," he wrote. "I further concur with the majority’s finding affirming the circuit court’s dismissal of the negligent hiring and negligent supervision claims asserted in Count 6."
Hutchison wrote in his opinion that he concurred with the bulk of the majority's opinion, but that the plaintiffs failed to plead any facts under Count 6 that suggested that the board was negligent in its decision to hire Livengood.
"I respectfully dissent, however, to the majority opinion’s discussion of the 'current' law regarding the negligent supervision cause of action," he wrote. "The majority opinion has done a cruel disservice to West Virginia’s common law by quoting the faulty interpretations of the law of negligent supervision by the circuit court and the federal courts, and it did so when it was patently unnecessary to the outcome of this case. By repeatedly employing the word 'current,' the majority suggests that it might address the boundaries of a negligent supervision claim in detail in a future, better-presented case."
Wooton wrote that he agreed with Hutchison in his separate opinion, but that he was disappointed with the majority.
"I write separately to express my dismay that the majority has taken yet another step toward the imposition of a heightened pleading standard in all civil cases, not just those 'where immunities are implicated,'" he wrote.
West Virginia Supreme Court of Appeals case number: 20-0171