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Leah Richard v. Washburn Public Schools

December 15, 2011

LEAH RICHARD,
PLAINTIFF AND APPELLANT
v.
WASHBURN PUBLIC SCHOOLS, DEFENDANT AND APPELLEE



Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme Court

Richard v. Washburn Public Schools,

2011 ND 240

This opinion is subject to petition for rehearing.

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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Crothers, Justice.

[¶1] Leah Richard appeals from a judgment dismissing her claims for negligent hiring, supervision and retention, and assault and battery against Washburn Public Schools ("the District"). We affirm the district court's dismissal of Richard's claims for negligent hiring and assault and battery, which she does not challenge on appeal. We reverse dismissal of Richard's claims for negligent supervision and retention because the court erred in concluding those claims were barred by the exclusive remedy provisions of the Workforce Safety and Insurance Act. We affirm the judgment in part, reverse in part, and remand for further proceedings.

I

[¶2] In November 2001, Richard, a sixteen-year-old student at Washburn High School, began working as a part-time custodian for the District. Gary Fuchs was the head custodian and Richard's supervisor. Richard alleges that during her employment with the District, which ended in 2003, Fuchs subjected her to "inappropriate conduct . . . including sexual comments and touching." Richard explained in her deposition that Fuchs would talk "in a sexual manner to everyone sitting down, whether we were on coffee break or . . . in the hallway . . . whether he was speaking to me or to another individual, it was very-- . . . just very demeaning." The first two physical incidents involved Fuchs allegedly "putting a chokehold" on Richard. In her deposition, Richard described the incidents:

"A. Previous to February 2003 Mr. Fuchs had put his hand around my neck. I had asked for time off one time. I believe my mom had time off at the same time. And . . . we had to have Ann Reisenauer fill in for us, so he didn't--he did not like that. And the second time I didn't roll up the vacuum cleaner cord the way he wanted me to. And definitely some anger issues there. Q. Why didn't he--so you're saying he put his hands around your neck because he didn't want Ann Reisenauer to fill in for you? . . . . A. I think because he had to find someone . . . to fill in. And I don't remember if it was a short period of time like a short notice . . . or what, but I do remember I did ask for time off. And it was the back--it was the back of the neck, and it was very--like a hard hold."

Richard did not report these incidents to the District.

[¶3] The third physical incident involved Fuchs allegedly grabbing Richard and telling her to bend over. Richard testified:

"A. I would say it was February--it was a few months before that, it was February 2003 was when I was vacuuming in Holly Becker's room, her kindergarten room, because at the time she was principal and kindergarten teacher. And she had a mirror sitting on the floor by the sink. And he told me to bend over. . . . [H]e was behind me, so . . . I was creeped out . . . even more. And . . . he continually told--like demanded that I bend over. Well, finally he took my neck, pushed me down by the mirror and . . . said that I had black on my nose. And he was behind me. So it's like just completely crossing the line. And . . . I definitely told my mom about this. . . . I just--I didn't know what to do." Richard's mother, Connie Kelsh, reported the incident to the elementary school principal, Holly Becker. According to Kelsh, Becker said, "'Well, that's just how Gary is, rough.'" Becker did not address the issue or relay the information to others, but told Kelsh to contact Robert Tollefson, the superintendent. Kelsh did not contact Tollefson.

[ΒΆ4] The fourth incident involved Fuchs allegedly putting his hands inside the front of Richard's pants and pulling ...


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