
    CIRCUIT COURT OF THE CITY OF NORFOLK
    Andrea Clayton Morgan v. City of Norfolk, Norfolk Public School Board, John O. Simpson, Sheryl Young, Dorothy Valencia, and Diane Feineis
    March 20, 2001
    Case No. L99-1308
   BY JUDGE MARC JACOBSON

Andrea Clayton Morgan has filed suit against the City of Norfolk, die Norfolk Public School Board, Dr. John O. Simpson, Sheryl Young, Dorothy Valencia, and Diane Feineis arising out of the Homebound Instruction Program (Program) her daughter, Stacy Marie Wilson-Rice, received during her senior year as a student at Maury High School in the City of Norfolk.

By letter dated June 3,1998 (Letter), Plaintiff notified Charles D. Griffith, Jr., Commonwealth’s Attorney for the City of Norfolk, of her claim against die Defendants, treating die letter as a “Notice of Legal Action.” She also filed a Motion for Judgment (Motion) with the Circuit Court of the City of Norfolk on June 3,1999. The Letter and Motion will be referred to interchangeably as to the facts and allegations set forth therein.

Plaintiff alleges that the Program was deficient in that Dorothy Valencia, the instructor assigned to Wilson-Rice for the Program, was unable to teach math at the required level and that the specialist told Wilson-Rice that she would arrange for a math specialist instead. Plaintiff alleges that no math specialist ever instructed Wilson-Rice and that Valencia visited the home on only three occasions. Because Wilson-Rice did not receive math instruction during foe semester in question, Plaintiff contends her daughter was unable to take final exams and thus was one credit short of foe minimum required for graduation with her class.

Plaintiff also alleges that in an attempt to receive payroll checks improperly, Valencia “knowingly and willfully used Plaintiff’s name... in a manner considered to be unlawful and FORBIDDEN” by forgery. See Motion, ¶ 1 (emphasis in original). Plaintiff alleges that when school officials were notified of this action, they foiled to rectify foe situation, believing Valencia’s version of foe relevant events. See Motion, ¶ 3-4. Because they believed Valencia’s account, Plaintiff alleges that school officials failed to investigate Wilson-Rice’s claims regarding foe homebound instruction, and as such, “foiled to exercise a sufficient degree of care and concern” for Plaintiffs daughter. See Motion, ¶ 5,7 (emphasis in original).

Each of foe Defendants has filed a Demurrer stating that foe Motion is insufficient as a matter of law.

“In any suit in equity or action at law, foe contention that a pleading does not state a cause of action or that such pleading foils to state facts upon which foe relief demanded can be granted may be made by demurrer.” Va. Code Ann. § 8.01-273 (Michie 1992, Supp. 1998). “A demurrer admits foe trufo of all material facts that are properly pleaded. According to this rule, foe facts admitted are those expressly alleged, those which are impliedly alleged, and those which may be fairly and justly inferred from foe facts alleged.” Bowman v. State Bank of Keysville, 229 Va. 534, 536, 331 S.E. 2d 797, 798 (1985). “When a motion for judgment or a bill of complaint contains sufficient allegations of material facts to inform a defendant of foe nature and character of foe claim, it is unnecessary for foe pleader to descend into statements giving details of proof in order to withstand demurrer.” CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993) (citing Hunter v. Burroughs, 123 Va. 113, 129, 96 S.E 360, 365 (1918)). Further, even if all of foe allegations in a pleading are true but foe allegations do not impose legal liability upon a defendant, a demurrer should be sustained. Smith v. Wolsiefer, 119 Va. 247, 89 S.E. 115 (1960).

Plaintiff has alleged that Defendant Norfolk School Board (Board) improperly or unduly disregarded Wilson-Rice’s version of events and that foe Board and/or its officers or employees “failed to exercise a sufficient degree of CARE and/or concern” for Plaintiffs daughter. See Motion, ¶ 5 (emphasis in original). Plaintiff alleges that foe Board and its officers and/or agents failed to rectify foe problem (see Motion, ¶3) and foiled to investigate her daughter’s claim. See Motion, ¶ 7. These allegations relate to tort liability. In order for diere to be liability by way of tort, there must be a legal duty owed unto Plaintiff and a breach of that duty by the Board causing or resulting in harm to Plaintiff. The Motion for Judgment and accompanying letter do not sufficiently allege a duty and/or a breach of duty causing haim to Plaintiff and a resulting cause of action against the Board or as to the allegations set forth in Motion ¶¶ 3,5, and 7. Accordingly, the Demurrer is sustained as to Motion ¶¶ 3,5, and 7.

The allegations that the Board encouraged acts of “Defamation, Fraud, Misrepresentation, and the Infliction of emotional distress” as set forth in Paragraph 6 of the Motion are insufficient as a matter of law as Virginia does not recognize a cause of action for these alleged torts. The Demurrer as to the alleged torts set forth in paragraph 6 of the Motion is sustained as to all Defendants.

In order for the Board to be liable for negligence there must be a statute permitting the Board to be sued. Kellam v. School Board, 202 Va. 252, 117 S.E.2d 96 (1960). If there is not a statute waiving governmental immunity from liability, a school board would not be liable to students of a public school by reason of negligence of the board itself or by its servants or agents while in the performance of their duties. Crabbe v. County Sch. Bd., 209 Va. 356, 164 S.E.2d 639 (1968), overruled on other grounds by Lentz v. Morris, 236 Va. 78, 372 S.E.2d 608 (1988). Accordingly, a cause of action has not been properly alleged against the Board or the City because neither can be liable for alleged improper actions of its employees. The Court finds and concludes that the Board is immune from liability because of governmental immunity.

The Court finds and concludes that the Defendants Sheryl Young and Diane Feineis are immune from liability for the alleged negligence or acts set forth in the Motion because of sovereign immunity under the guiding case of Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984). Further, in the case of Lentz v. Morris, the Virginia Supreme Court held that a public school teacher was entitled to governmental immunity, stating:

The employee is performing a vitally important public function as a schoolteacher. The governmental entity employing the teacher, the local school board, has official interest and direct involvement in the function of student instruction and supervision and it exercises control and direction over the employee through the school principal. See, e.g., Va. Const., Art. Vm, § 7 (“the supervision of schools in each school division shall be vested in a school board----”); Code § 22.1-293 (school board employs principal who “shall be responsible for tiie administration of and shall supervise the operation and management of the school....”). And, a teacher’s supervision and control of a physical education class... clearly involves, at least in part, the exercise of judgment and discretion by the teacher.

236 Va. at 82-83 (quoting Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984)). The Court concluded that the factors enunciated in Messina for entitlement to governmental immunity were present, noting that in that case simple negligence was alleged, as opposed to gross negligence or intentional misconduct, hi the instant case, gross negligence and/or intentional misconduct are not alleged; therefore, the individual defendant is immune from suit.

The factors which allow governmental immunity for the individual Defendants Young and Feineis are present in the instant case, and the Demurrers as to Defendants Young and Feineis are sustained.

The Motion as to Defendant Dr. John O. Simpson is dismissed as the alleged negligence and/or actions of the other Defendants allegedly occurred prior to June 3, 1998, and Dr. Simpson did not become Superintendent of Schools for the City of Norfolk until July 12,1998.

The Motion as to Defendant Valencia alleges “knowing and willful” conduct, see Motion, ¶ 1, but Plaintiffs allegations that she “suffered an extensive amount of undue stress, humiliation, embarrassment, and mental pain and suffering” are insufficient and not compensable as a matter of law, and die Demurrer as to Defendant Valencia is sustained.  