NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-246
TONIA BRIDGES FISHBACK
VERSUS
SABINE PARISH SCHOOL BOARD, ET AL.
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 57,295 HONORABLE ROBERT EDWARD BURGESS, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Billy Howard Ezell, Judges.
AFFIRMED.
Daniel G. Brenner Christina S. Slay Bolen, Parker & Brenner, Ltd. P. O. Box 11590 Alexandria, LA 71315-1590 (318) 445-8236 Counsel for Defendants/Appellees: Sabine Parish School Board Roy Lee Brown Coregis Insurance Company D. Wayne Bush S. Christie Smith IV The Smith Law Firm, LLP P. O. Drawer 1528 Leesville, LA 71496-1528 (337) 239-2244 Counsel for Plaintiff/Appellant: Tonia Bridges Fishback DECUIR, Judge.
Tonia Bridges Fishback, individually, and on behalf of her minor son, filed suit
against the Sabine Parish School Board, Roy Lee Brown, and Roger and Betty Sue
Rains, the legal guardians of the minor child, T.J. Rains, for injuries sustained as a
result of T.J.’s sexual misconduct while riding on a school bus driven by Brown.
After a jury trial, the School Board and Mr. Brown were found to be free from fault
and judgment was rendered in their favor. The Rains were voluntarily dismissed from
the litigation prior to trial. The plaintiff appeals, and for the following reasons, we
affirm.
Ms. Fishback’s son, Austin, was a kindergarten student in the fall of 2003 when
he began riding the school bus with his sister to Florein Elementary School. The bus
was driven by Mr. Brown, a twenty-nine year veteran bus driver employed by the
School Board. The evidence in the record shows that T.J., a fourteen-year-old special
education student, was one of the first students on the bus in the mornings. He would
sit in the front to talk with Mr. Brown; then at the next stop where Austin boarded the
bus, he would move to Austin’s seat and talk to him. A few hundred yards down the
road, the bus made another stop, and T.J. would then move to his assigned seat.
Austin rode Mr. Brown’s bus from August through December of 2003. His
family then moved and he rode a different bus to school. In February or March of
2004, Austin told his mother that T.J. had put his hand down his pants while they
were sitting together on the bus and touched his penis. The evidence shows that the
molestation occurred at least two or three times. T.J. did not testify at trial, and there
were no records documenting the ensuing investigation. However, school personnel
testified that T.J. admitted the allegations against him, was suspended from Florein
Elementary School, and transferred into a special program at a different school
shortly thereafter. In this appeal, Ms. Fishback raises three issues for this court’s review. First,
she contends the trial court erred in denying challenges for cause against four
veniremen who could not be fair and impartial. Consequently, the plaintiff complains
that she was forced to exhaust her allotted peremptory challenges prematurely. Ms.
Fishback next contends the trial court erred in granting a directed verdict in favor of
the defense on the question of whether the evidence was sufficient to support a
finding of negligent supervision on the part of School Board employees other than the
bus driver, Mr. Brown. Finally, Ms. Fishback argues that the verdict is contrary to
the law and evidence.
JURY SELECTION
The plaintiff contends the trial court erred in denying challenges for cause
regarding the following members of the jury venire:
1. Joe Melton, whose wife is a court employee and was in the courtroom
during voir dire;
2. Dianne Andries, who accused the plaintiff’s counsel, and all attorneys, of
wanting to “stack the jury” and was dissatisfied with the civil justice system;
3. Charles Arthur, who explained his friendship with both Mr. Brown and the
school principal, a witness in the case; and
4. Kenny Bell, a friend of “everyone” involved in the case, plaintiff and
defendants alike.
While some of the comments made by these prospective jurors were sufficient
to raise questions as to their ability to be fair, the trial judge was satisfied, ultimately,
that each one could serve with impartiality. We have reviewed the transcript of voir
dire in detail and find no abuse of the trial court’s great discretion in ruling on these
2 particular challenges for cause. The judge explained that he considered not only what
the veniremen said but how they said it, and made his rulings accordingly.
DIRECTED VERDICT
At the conclusion of the plaintiff’s case in chief, the School Board was granted
a directed verdict dismissing the claim for negligent supervision by School Board
employees other than the bus driver. The School Board argued that Ms. Fishback
failed to present evidence sufficient to support a claim of negligence on the part of
any employees other than the driver. Indeed, the School Board’s position correctly
states the burden of proof required of Ms. Fishback in this case: In order for liability
to be imposed under a theory of negligent supervision, the plaintiff must prove that
the risk of unreasonable injury was foreseeable, “constructively or actually known,”
and preventable. Wallmuth v. Rapides Parish Sch. Bd., 01-1779, 01-1780, p. 8 (La.
4/3/02), 813 So.2d 341, 346. School board employees are obliged to provide
reasonable supervision of students, not constant supervision.
The record before us shows that T.J. Rains was a special education student
classified as mildly mentally disabled, although he was in the seventh grade and had
passed the fourth grade LEAP test after summer school. In addition to his mental
disability, the evidence shows that he has a hearing loss, has been diagnosed with
ADHD, and comes from what was described at trial as a dysfunctional family.
Nevertheless, T.J. had, at the time of the events giving rise to this lawsuit, an
unremarkable disciplinary record. He had been disciplined for such transgressions
as failing to finish writing lines assigned as punish work and failing to turn around
and sit in his assigned seat on the bus. There was nothing in the evidence presented
by the plaintiff which may have suggested that T.J. was the type of student who
would commit the acts complained of herein. No evidence was offered to show that
3 the School Board had prior knowledge of any behavior or tendency on the part of T.J.
to engage in inappropriate touching of a kindergarten student. In short, Ms. Fishback
failed to meet her burden of proving the required element of foreseeability.
In Hebert v. BellSouth Telecommunications, Inc., 01-223 (La.App. 3 Cir.
6/6/01), 787 So.2d 614, 617, this court reiterated the appropriate standard of review
for a directed verdict. Quoting Busby v. St. Paul Insurance Co., 95-2128, pp. 16-17
(La.App. 1 Cir. 5/10/96), 673 So.2d 320, 331, writ denied, 96-1519 (La. 9/20/96),
679 So.2d 443, [citations omitted.] this court held: “On appeal, the standard of review
for directed verdicts is whether, viewing the evidence submitted, the appellate court
concludes that reasonable people could not reach a contrary verdict. Furthermore, the
propriety of a directed verdict must be evaluated in light of the substantive law
underpinning the plaintiff’s claims.” Id.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-246
TONIA BRIDGES FISHBACK
VERSUS
SABINE PARISH SCHOOL BOARD, ET AL.
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 57,295 HONORABLE ROBERT EDWARD BURGESS, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Billy Howard Ezell, Judges.
AFFIRMED.
Daniel G. Brenner Christina S. Slay Bolen, Parker & Brenner, Ltd. P. O. Box 11590 Alexandria, LA 71315-1590 (318) 445-8236 Counsel for Defendants/Appellees: Sabine Parish School Board Roy Lee Brown Coregis Insurance Company D. Wayne Bush S. Christie Smith IV The Smith Law Firm, LLP P. O. Drawer 1528 Leesville, LA 71496-1528 (337) 239-2244 Counsel for Plaintiff/Appellant: Tonia Bridges Fishback DECUIR, Judge.
Tonia Bridges Fishback, individually, and on behalf of her minor son, filed suit
against the Sabine Parish School Board, Roy Lee Brown, and Roger and Betty Sue
Rains, the legal guardians of the minor child, T.J. Rains, for injuries sustained as a
result of T.J.’s sexual misconduct while riding on a school bus driven by Brown.
After a jury trial, the School Board and Mr. Brown were found to be free from fault
and judgment was rendered in their favor. The Rains were voluntarily dismissed from
the litigation prior to trial. The plaintiff appeals, and for the following reasons, we
affirm.
Ms. Fishback’s son, Austin, was a kindergarten student in the fall of 2003 when
he began riding the school bus with his sister to Florein Elementary School. The bus
was driven by Mr. Brown, a twenty-nine year veteran bus driver employed by the
School Board. The evidence in the record shows that T.J., a fourteen-year-old special
education student, was one of the first students on the bus in the mornings. He would
sit in the front to talk with Mr. Brown; then at the next stop where Austin boarded the
bus, he would move to Austin’s seat and talk to him. A few hundred yards down the
road, the bus made another stop, and T.J. would then move to his assigned seat.
Austin rode Mr. Brown’s bus from August through December of 2003. His
family then moved and he rode a different bus to school. In February or March of
2004, Austin told his mother that T.J. had put his hand down his pants while they
were sitting together on the bus and touched his penis. The evidence shows that the
molestation occurred at least two or three times. T.J. did not testify at trial, and there
were no records documenting the ensuing investigation. However, school personnel
testified that T.J. admitted the allegations against him, was suspended from Florein
Elementary School, and transferred into a special program at a different school
shortly thereafter. In this appeal, Ms. Fishback raises three issues for this court’s review. First,
she contends the trial court erred in denying challenges for cause against four
veniremen who could not be fair and impartial. Consequently, the plaintiff complains
that she was forced to exhaust her allotted peremptory challenges prematurely. Ms.
Fishback next contends the trial court erred in granting a directed verdict in favor of
the defense on the question of whether the evidence was sufficient to support a
finding of negligent supervision on the part of School Board employees other than the
bus driver, Mr. Brown. Finally, Ms. Fishback argues that the verdict is contrary to
the law and evidence.
JURY SELECTION
The plaintiff contends the trial court erred in denying challenges for cause
regarding the following members of the jury venire:
1. Joe Melton, whose wife is a court employee and was in the courtroom
during voir dire;
2. Dianne Andries, who accused the plaintiff’s counsel, and all attorneys, of
wanting to “stack the jury” and was dissatisfied with the civil justice system;
3. Charles Arthur, who explained his friendship with both Mr. Brown and the
school principal, a witness in the case; and
4. Kenny Bell, a friend of “everyone” involved in the case, plaintiff and
defendants alike.
While some of the comments made by these prospective jurors were sufficient
to raise questions as to their ability to be fair, the trial judge was satisfied, ultimately,
that each one could serve with impartiality. We have reviewed the transcript of voir
dire in detail and find no abuse of the trial court’s great discretion in ruling on these
2 particular challenges for cause. The judge explained that he considered not only what
the veniremen said but how they said it, and made his rulings accordingly.
DIRECTED VERDICT
At the conclusion of the plaintiff’s case in chief, the School Board was granted
a directed verdict dismissing the claim for negligent supervision by School Board
employees other than the bus driver. The School Board argued that Ms. Fishback
failed to present evidence sufficient to support a claim of negligence on the part of
any employees other than the driver. Indeed, the School Board’s position correctly
states the burden of proof required of Ms. Fishback in this case: In order for liability
to be imposed under a theory of negligent supervision, the plaintiff must prove that
the risk of unreasonable injury was foreseeable, “constructively or actually known,”
and preventable. Wallmuth v. Rapides Parish Sch. Bd., 01-1779, 01-1780, p. 8 (La.
4/3/02), 813 So.2d 341, 346. School board employees are obliged to provide
reasonable supervision of students, not constant supervision.
The record before us shows that T.J. Rains was a special education student
classified as mildly mentally disabled, although he was in the seventh grade and had
passed the fourth grade LEAP test after summer school. In addition to his mental
disability, the evidence shows that he has a hearing loss, has been diagnosed with
ADHD, and comes from what was described at trial as a dysfunctional family.
Nevertheless, T.J. had, at the time of the events giving rise to this lawsuit, an
unremarkable disciplinary record. He had been disciplined for such transgressions
as failing to finish writing lines assigned as punish work and failing to turn around
and sit in his assigned seat on the bus. There was nothing in the evidence presented
by the plaintiff which may have suggested that T.J. was the type of student who
would commit the acts complained of herein. No evidence was offered to show that
3 the School Board had prior knowledge of any behavior or tendency on the part of T.J.
to engage in inappropriate touching of a kindergarten student. In short, Ms. Fishback
failed to meet her burden of proving the required element of foreseeability.
In Hebert v. BellSouth Telecommunications, Inc., 01-223 (La.App. 3 Cir.
6/6/01), 787 So.2d 614, 617, this court reiterated the appropriate standard of review
for a directed verdict. Quoting Busby v. St. Paul Insurance Co., 95-2128, pp. 16-17
(La.App. 1 Cir. 5/10/96), 673 So.2d 320, 331, writ denied, 96-1519 (La. 9/20/96),
679 So.2d 443, [citations omitted.] this court held: “On appeal, the standard of review
for directed verdicts is whether, viewing the evidence submitted, the appellate court
concludes that reasonable people could not reach a contrary verdict. Furthermore, the
propriety of a directed verdict must be evaluated in light of the substantive law
underpinning the plaintiff’s claims.” Id. at 617.
After considering the evidence in the record before us, we conclude the trial
court appropriately granted a directed verdict in the defendant’s favor.
MANIFEST ERROR
The question before the jury at the close of the evidence was whether the bus
driver, Mr. Brown, was negligent in his supervision of T.J. and Austin. The bus
driver’s duty to supervise students on his bus is similar to that of other school board
employees. Reasonable and competent supervision is required, yet it need not be
constant and may be adjusted based on the age of the children and the attendant
circumstances. Doe ex. rel. Doe v. Desoto Parish Sch. Bd., 39,779 (La.App. 2 Cir.
6/29/05), 907 So.2d 275, writ denied, 05-2020 (La. 2/10/06), 924 So.2d 167. The bus
driver is further burdened with the duties of driving the bus safely.
In the instant case, Austin sat in the seat closest to Mr. Brown. While T.J. sat
with Austin at the beginning of the morning ride, within two minutes of Austin’s
4 arrival, T.J. would proceed to his own seat. The evidence indicates that the actions
of T.J. occurred in the early morning hours when it was still dark outside and few
other children were on the bus. Mr. Brown talked to T.J. daily and considered him
to be a child who needed to talk to someone; yet there is no evidence suggesting that
Mr. Brown could have foreseen T.J.’s actions with regard to Austin. Austin himself
gave no indication to Mr. Brown that something was wrong.
Considering this evidence, we find no manifest error in the factual conclusion
that Mr. Brown did not breach the duty of reasonable supervision required of him.
DECREE
For the above and foregoing reasons, the judgment of the trial court is affirmed.
Costs of this appeal are assessed to the plaintiff, Tonia Bridges Fishback.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.