CHARLESTON — The West Virginia Supreme Court of Appeals dismissed a legal matter by a minor who alleged they were inappropriately touched at school by another student.
The court dismissed an appeal related to the case, which had originated from orders by the Kanawha Circuit Court in 2019 and 2021, according to the opinion.
Justice Bill Wooton authored the majority opinion. Justice Haley Bunn recused herself from the case, and Judge Perri Jo DeChristopher sat by temporary assignment in her place.
The lawsuit was brought by S.D., a minor, who alleged negligence in the handling of an incident where she was inappropriately touched by another student, M.P., at George Washington High School in 2018.
S.D. reported the incident to school officials immediately, however, she noted that M.P. had only “smacked [her] on the butt” and that he shouldn’t be punished. M.P. was given two days of out-of-school suspension.
The school board contended that S.D. had suffered no physical injury and that they had not breached any legal duty. The circuit court found genuine issues of material fact, leading to the denial of summary judgment.
The appeal was dismissed by the West Virginia Supreme Court of Appeals because the orders were considered interlocutory and not subject to appeal.
The incident occurred in a crowded hallway, where M.P. inappropriately touched S.D. in her private area. M.P. faced disciplinary action for committing a Level II infraction, resulting in a two-day suspension. After returning to school, S.D. alleged that M.P. flinched toward her and was laughing, in an attempt to scare her.
S.D. filed a negligence lawsuit, contending that the school authorities negligently categorized the incident and that their handling of M.P.'s discipline was influenced by his status as a star player on the basketball team, with a game scheduled soon after his return. S.D. sought compensatory and punitive damages, alleging reckless behavior by the petitioners.
The Supreme Court says the Dec. 16, 2021, order that denies the motion for summary judgment constitutes an ordinary denial of summary judgment.
“As indicated above, petitioners moved for summary judgment exclusively on the basis that the evidence failed to establish that petitioners breached a legal duty to S.D., and that S.D.’s negligence claim for emotional distress in absence of physical injury must fail,” the opinion states. “Neither of these arguments is predicated on immunity, and nowhere in petitioners’ motion or supporting memorandum of law did they argue that they were entitled to summary judgment on the basis of immunity. Likewise, the December 16, 2021, order denying their motion for summary judgment neither addresses nor is “predicated on immunity” and therefore constitutes an ordinary denial of summary judgment that yields no finality and is not otherwise subject to immediate appeal.”
The court opinion highlighted that the petitioners failed to pinpoint specific errors in the 2019 order and did not pursue a ruling related to statutory immunity.
The court ruled that both orders lacked criteria for interlocutory appeal, with the Dec. 16, 2021, order not meeting jurisdictional requirements, and the June 21, 2019, order not containing any adverse rulings related to immunity.
Justice Wooton concluded that the appeal must be dismissed, emphasizing the court's lack of jurisdiction to review the orders and the insufficiency of the presented material for granting relief.
The Kanawha County Board of Education declined to comment on the opinion.
West Virginia Supreme Court of Appeals case number: 22-0028