CHARLESTON — The West Virginia Supreme Court of Appeals dismissed an appeal involving a minor who was inappropriately touched while at school.
Attorneys for the petitioners could not comment on the matter as it is ongoing litigation.
The Kanawha County Board of Education and several individuals appealed the Kanawha Circuit Court's orders from 2019 and 2021, which denied their motion for summary judgment in a negligence lawsuit, according to an opinion in the West Virginia Supreme Court of Appeals.
Justice Bill Wooton authored the majority opinion. Justice Haley Bunn did not participate and Judge Perri Jo DeChristopher sat by temporary assignment.
The lawsuit was filed by S.D., who was a minor, alleged negligence in handling an incident where she was inappropriately touched by a fellow student, M.P., at George Washington High School on Jan. 29, 2018.
She claimed M.P. approached her in a crowded hallway and touched her in her "private area" and she immediately reported the incident to George Aulenbacher, the principal of the school, and Brad Marano, the assistant principal.
The school board argued that S.D. suffered no physical injury and that they did not breach any legal duty, but the court found genuine issues of material fact, leading to the denial of summary judgment.
The appeal was dismissed as the court determined the orders were interlocutory and not appealable rulings.
After the incident had occurred, M.P. was found to have committed a Level II disciplinary infraction and was given an out-of-school suspension for two days.
"Upon M.P.'s return to school, S.D. alleges that she again passed him in the hallway and he 'flinched' in her direction, laughed and walked away, ostensibly in an effort to harass or intimidate her," the opinion states.
S.D. then filed her complaint in Kanawha Circuit Court. She argued that while the petitioners could not have prevented the initial unwelcome touching, they negligently categorized the incident as a lesser offense.
S.D. argues that the petitioners' handling of M.P.'s discipline was motivated due to his star status on the school's basketball team and a game being scheduled shortly after his return.
S.D. alleged that the petitioners acted recklessly and in her case, she was seeking compensatory and punitive damages.
"At the outset of the litigation petitioners filed a motion to dismiss seeking dismissal of the case in its entirety as against the individual defendants and the punitive damages claim as against both the individual petitioners and the BOE, relying upon certain provisions of West Virginia Code..." the opinion states.
Wooton wrote that the petitioners failed to pinpoint any specific error in the 2019 order and solely asserted that a particular finding in the order grants statutory immunity to individual petitioners.
However, they did not pursue a ruling on this finding or seek summary judgment based on it, Wooton wrote.
The Supreme Court ruled that both orders presented by the petitioners were deemed inappropriate for review.
The December 16, 2021, order doesn't meet the criteria for interlocutory appeal, and the court lacks jurisdiction to review it. the court found.
The June 21, 2019, order doesn't contain any adverse ruling or errors related to immunity, making it insufficient for granting relief.
The appeal must be dismissed, Wooton wrote in the majority opinion.
West Virginia Supreme Court of Appeals case number: 22-0028