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Claims against Cape school district dismissed

Former student alleges sexual assault by male employee
November 27, 2019

Claims against Cape Henlopen School District officials and its school board were dismissed Nov. 15 by the judge in a lawsuit filed by a former student who says she was sexually assaulted by a male employee but school and district officials did nothing about it.

The lawsuit demanded a jury trial, compensation and punitive damages, and attorney's fees for incidents in 2015 involving former Cape High Theater technical director Derek Dutton. The lawsuit states Dutton had anger issues and had unlawful sexual contact with the former student, who was a theater student at the time of the alleged incident.

Superior Court Judge E. Scott Bradley ruled that all claims against the district, school board and its employees Superintendent Robert Fulton, Cape High Principal Nikki Miller and former Cape High Principal Brian Donahue should be dismissed. The district had moved to dismiss all six remaining claims filed in January 2019 by the former student, which included assault and battery, gross negligence, intentional infliction of emotional distress and negligent infliction of emotional distress.

The lawsuit states the former student and her sister both “suffered severe and permanent psychological and physical injuries, emotional distress, inconvenience, pain and suffering, loss of enjoyment of life and aggravation of a pre-existing condition” from Dutton's actions.

The former student originally filed 10 counts against the school district and officials, but dropped four counts including fraud and negligence in an amended complaint.

Dutton also originally faced 10 counts, but in the amended complaint, he faced only four – assault and battery, gross negligence, intentional infliction of emotional distress and negligent infliction of emotional distress. Dutton moved to dismiss all claims except assault and battery, according to the court document.

Judge Bradley dismissed only the gross negligence claim against Dutton. He writes that gross negligence is dismissed because the claim in part has to prove a failure to supervise Dutton.

“Plainly, a claim against Dutton cannot exist for a failure to supervise himself,” the document states.

Bradley denied Dutton's motion to dismiss the former student's claims of emotional distress.

On the claim of intentional infliction of emotional distress – legally known as IIED – Bradley writes that plaintiffs must prove Dutton's conduct exceeded the bounds of decency and is regarded as intolerable by a civilized community.

“Dutton's alleged conduct is certainly outrageous and beyond what any reasonable person could be expected to endure. Given the nature of his conduct, the [former student] is not required to allege bodily harm to establish a valid claim for IIED,” Bradley wrote in his ruling to allow the claim to continue.

On the claim of negligent infliction of emotional distress, the former student only details her reaction to the alleged sexual assault, and that it made her feel unsafe.

“Viewing this in a light most favorable … it is reasonable to infer [the former student] may have suffered additional, long-lasting physical and emotional damages,” Bradley writes.

But if during the discovery process of the lawsuit those long-lasting physical and emotional damages are not proven, he wrote, Dutton may seek dismissal of the claim on a motion for summary judgement.