Tracy Stopford, Individually, and as Administrator of the Estate of Jordan Preavy and Sean Preavy v. Milton Town School District and Milton Town School Board

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2018 VT 120

No. 2017-398

Tracy Stopford, Individually, and as Administrator Supreme Court
of the Estate of Jordan Preavy and Sean Preavy

On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division

Milton Town School District and April Term, 2018
Milton Town School Board et al.

Robert A. Mello, J.

Robert Appel, Burlington, for Plaintiffs-Appellants.

Pietro J. Lynn and Adrienne Shea of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for
Defendants-Appellees.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. Plaintiffs appeal from the trial court’s order granting defendants’

motion for summary judgment on their negligence claims. Plaintiffs are Jordan Preavy’s mother,

Tracy Stopford, in her individual capacity and as administrator of his estate, and his father, Sean

Preavy. They allege that their son took his own life as a result of being assaulted by some of his

teammates on the Milton High School football team, which, according to plaintiffs, the school

negligently failed to prevent. On appeal, plaintiffs argue that the court did not properly apply the

summary judgment standard nor the appropriate duty of care and that it erred when it concluded

that plaintiffs failed to prove that the assault was foreseeable and that it was the proximate cause
of Jordan’s suicide.1 In addition, plaintiffs argue that the court improperly imposed a monetary

sanction on their attorney after finding that he engaged in a prohibited ex parte communication

with defendants’ expert witness. We affirm.

¶ 2. In 2009, Milton High School administrators learned that students at the school,

including football players, were playing a game the students called “no homo.” The game entailed

a student complimenting another same-sex student and then immediately stating “no homo,”

apparently to signify that the speaker was not a homosexual. In November of 2009, the football

coach told the members of the team to stop playing the game and then held a team meeting after

learning that some members of the team ignored his request. He informed the team that there

would be dire consequences if he heard that the team continued to play the game. The school’s

athletic director wrote a letter to parents and explained that the school was “looking into instances

of verbal harassment and otherwise inappropriate conversations and behaviors” by teams at the

school. He scheduled another team meeting and notified parents of the meeting. The coach and

athletic director then instituted a “Positive Corrective Action Plan” that included placing the

football team on behavioral probation for the 2010 season. After this, school officials did not

witness or receive reports of football players playing the “no homo” game or engaging in any other

incidents of verbal or physical harassment—or even any other inappropriate behavior—until

Spring 2013, many months after Jordan’s death.

¶ 3. Jordan Preavy transferred to Milton High School in the fall of 2011 from Essex

High School. He joined the football team and attended a team dinner on school grounds in August

2011. During this event, while the team had congregated on the soccer field and was separated

from the adults attending the dinner, a member of the team held Jordan down while another

1
Because we affirm the court’s decision finding that defendants did not breach the
applicable duty of care, the issue of causation is moot and we do not address it.
2
assaulted him with a broomstick by jabbing it at his buttocks through his clothing.2 Jordan did not

tell his parents about the incident nor make a report to the school. In August 2012, Jordan stopped

playing football due to a conflict with his lacrosse schedule. On August 28, 2012, he took his own

life.

¶ 4. In the spring of 2013, a teacher at the school learned about the 2011 assault from

his son and reported it to school administrators. This was the first time the school administration

was notified of the incident. The Chittenden Unit for Special Investigations (CUSI) began an

investigation into the assault and interviewed several members of the football team. Interviewees

described some football team members’ ongoing practices of exposing their genitals to other

players, pretending to “hump” teammates, and shoving their exposed genitals into other players.

One member of the team told investigators that he decided to discontinue playing football so as

not to be associated with this behavior. Another interviewee “had always heard about” similar

incidents prior to joining the team in 2009. Some of these behaviors occurred in the “Blockhouse,”

a former storage structure which was being used by the football team as a locker room; it also

housed an office for the coaches. The CUSI investigation culminated in criminal charges against

two members of the football team and subsequent convictions for their roles in the assault on

Jordan.

¶ 5. Plaintiff Stopford, in her capacity as the administratrix of her son’s estate, originally

brought claims of negligence and violation of the Vermont Public Accommodations Act (VPAA)

against Milton Town School District, Milton Town School Board, Milton High School Board,

Milton Town School District Superintendent John Barone, Sr., and Milton High School Principal

Anne Blake in their official capacities. In addition, plaintiffs Stopford and Sean Preavy, in their

2
The record is not clear as to whether the broomstick penetrated Jordan’s rectum and,
therefore, we use the term “at.” Resolution of this factual dispute is not required in order to decide
the issues before us.
3
individual capacities, brought a claim for loss of parental consortium against the same defendants.

Defendants filed a motion for judgment on the pleadings seeking dismissal of the loss of

consortium claims and the claims against Barone and Blake, arguing they were barred by the

statute of limitations. The trial court granted the motion, and plaintiffs have not appealed this

ruling. The negligence and VPAA claims against Milton Town School District, Milton Town

School Board, and Milton High School Board remained.3

¶ 6. Defendants then filed a motion for summary judgment, seeking dismissal of both

remaining claims.4 Defendants asserted that the undisputed facts did not support plaintiff’s

negligence claim. Specifically, defendants argued that plaintiffs were unable to prove that

defendants breached a duty of care owed to Jordan. Defendants contended that they owed Jordan

the duty of ordinary care, pursuant to 16 V.S.A. § 834(a), and that they did not owe a duty to

protect Jordan from an assault by team members because this was not foreseeable. In general, this

argument rested on the lack of evidence that Jordan had been the subject of harassment prior to

the 2011 incident, and that he had never reported any harassment to the school. And, defendants

argued, the nature of the victimization suffered by Jordan during the assault involved physical

assault, rather than verbal harassment, and thus was unlike and more severe than the one ritual

conducted by members of the football team that the school was aware of (the “no homo” game).

¶ 7. Plaintiffs opposed defendant’s motion for summary judgment, asserting that, even

though § 834(a) sets out a duty of ordinary care under these circumstances, § 834(b), which

dictates that school districts “do not owe their students a duty of immediate supervision at all times

and under all circumstances,” did not narrow the common law duty of care owed by schools to

3
We presume that Milton High School Board is still a party to this action. It was not
docketed as a party here because it was not referenced in filings made by the parties. However, a
review of the trial court docket entries reveals it was a named defendant on the negligence claim.
4
The trial court granted summary judgment to defendants on the VPAA claim, and
plaintiffs have not appealed this aspect of the court’s decision, so we will not address it here.
4
their students. According to plaintiffs, claims grounded in negligent supervision of students only

require a showing that an unreasonable risk was foreseeable to the school. Liability is not further

limited by § 834(b). Finally, plaintiffs contended that foreseeability is a jury issue and that

testimony by plaintiffs’ two expert witnesses would establish for the jury that, given the high

number of incidents of school hazing nationwide, particularly by athletic teams, Jordan’s 2011

assault was foreseeable based upon all the information Milton High School had available to it at

that time.

¶ 8. Citing Edson v. Barre Supervisory Union No. 61, the trial court held that Milton

High School owed Jordan a duty of ordinary care to prevent him from being exposed to an

unreasonable, foreseeable risk. 2007 VT 62, ¶ 10, 182 Vt. 157, 933 A.2d 200. It also concluded

that the school had no prior notice of physical harassment by football team members, nor was it

aware of Jordan or any other member of the team being harassed by the perpetrators of the assault

or anyone else on the team. The court rejected plaintiffs’ argument that the school’s knowledge

of the “no homo” game put it on notice such that the broomstick assault was foreseeable,

differentiating between a nonphysical game and a physical attack and noting that the “no homo”

game had been discontinued several years prior to Jordan’s enrollment. The court ultimately

concluded that there was insufficient evidence that the assault was foreseeable, and therefore the

school did not have a duty to protect Jordan from it. The court accordingly granted defendants’

motion for summary judgment on this claim.

¶ 9. During the discovery process, defendants filed a motion for sanctions alleging that

plaintiffs’ counsel engaged in ex parte contact with defendants’ expert witness. The trial court

granted the motion, finding that counsel had acted improperly when he contacted the expert to

inquire about scheduling a deposition, and the costs associated with it, without following the

customary procedure of going through opposing counsel. The court emphasized that the improper

communication resulted in counsel “glean[ing] information that served as the basis for [plaintiffs’]

5
subsequently filed motion to strike” and that defendants were then forced to respond. Ultimately,

the court concluded that plaintiffs’ counsel acted in bad faith and ordered him to compensate

defendants for fees associated with handling and preparing their opposition to the motion to strike.

¶ 10. On appeal, plaintiffs argue that, in ruling on defendants’ motion for summary

judgment, the trial court failed to give plaintiffs the benefit of all reasonable doubts and inferences

as required by Vermont Rule of Civil Procedure 56. Additionally, plaintiffs submit that under

these circumstances, Milton High School owed Jordan a heightened duty of care but they also

argue in the alternative that the school breached the duty of ordinary care. Finally, plaintiffs take

issue with the court’s imposition of sanctions on their attorney for his conduct during discovery.

¶ 11. Plaintiffs first argue that when the trial court considered the motion for summary

judgment it “disregarded and distorted a number of key material facts well established in the

record” and did not consider legal precedent. Plaintiffs take issue with the court’s alleged failure

to recognize what they argue are undisputed, relevant facts. Summary judgment should be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” V.R.C.P. 56(a). When determining whether a material

fact is disputed, “the party opposing summary judgment is entitled to the benefit of all reasonable

doubts and inferences.” Carr v. Peerless Ins. Co., 168 Vt. 465, 476, 724 A.2d 454, 461 (1998).

We review a grant of summary judgment using the same standard. Greene v. Stevens Gas Serv.,

2004 VT 67, ¶ 9, 177 Vt. 90, 858 A.2d 238. We reject plaintiffs’ argument that the summary

judgment decision must be reversed for a failure to consider certain facts. Even assuming plaintiffs

are correct and the trial court disregarded what they characterize as additional material facts and

relevant case law, our review is not limited to the facts and law cited by the trial court. We review

a summary judgment decision by examining the entire record and decide questions of law de novo.

Stone v. Town of Irasburg, 2014 VT 43, ¶ 25, 196 Vt. 356, 98 A.3d 769.

6
 ¶ 12. Plaintiffs next contend that the question of the applicable duty of care is not settled

and the trial court erred in not applying a heightened duty of care. A claim for “[c]ommon law

negligence has four elements: a legal duty owed by defendant to plaintiff, a breach of that duty,

actual injury to the plaintiff, and a causal link between the breach and the injury.” Demag v. Better

Power Equip., Inc., 2014 VT 78, ¶ 6, 197 Vt. 176, 102 A.3d 1101 (quotation omitted). When

applying the most common legal duty, that of ordinary care, “[w]hether a defendant is negligent

depends on whether his or her action was objectively reasonable under the circumstances; that is,

the question is whether the actor either does foresee an unreasonable risk of injury, or could have

foreseen it if he conducted himself as a reasonably prudent person.” Id. ¶ 27 (quotation omitted).

Thus, the scope of the duty “is determined by the foreseeability of the consequences of [the

defendant’s] acts or omissions.” Id. While courts have found that a special relationship between

the parties dictates the application of a heightened duty of care, under Vermont law there is no

special relationship between a school district and its student population. Indeed, under statutes

and our case law, schools owe their students a duty of ordinary care, not a heightened duty of care.

¶ 13. In 1983, the Vermont Legislature enacted 16 V.S.A. § 834, which provides that:

(a) Each school district and its employees owe its students a duty
of ordinary care to prevent the students from being exposed to
unreasonable risk, from which it is foreseeable that injury is likely
to occur.
(b) School districts and their employees do not owe their students
a duty of immediate supervision at all times and under all
circumstances.

This language is explicit and unambiguous. Where the Legislature has spoken clearly, we do not

interfere. Lydy v. Trustaff, Inc., 2013 VT 44, ¶ 53, 194 Vt. 165, 76 A.3d 150 (Robinson, J.,

dissenting) (“[W]here the Legislature has spoken clearly, our obligation is to give effect to its

intent—whether it expressed that intent through legislation a year ago, a decade ago, or a century

ago.”); In re Con-Elec Corp., 168 Vt. 576, 576-77, 716 A.2d 822, 824 (1998) (mem.) (refusing to

strike down Liquor Control Board regulation where Legislature has enacted legislation consistent

7
with regulation). The enactment of § 834(a) evidences the Legislature’s intent: Vermont schools

do not owe their students anything other than a duty of ordinary care. We will not disregard that

intent. In addition, by explicitly stating in § 834(b) that Vermont schools do not owe students a

duty of immediate supervision at all times and under all circumstances, we conclude that the

Legislature chose not to impose a heightened duty of care upon our schools.

¶ 14. We construed § 834 to determine the scope of the legal duty involving allegations

of negligence in the school setting in Edson. 2007 VT 62. There, the plaintiff filed a wrongful

death action alleging that the administrators and teachers at her daughter’s high school breached

their duty of care and supervision when they allowed her daughter to leave school grounds without

authorization which, plaintiff submitted, resulted in her murder. The plaintiff invited us to

conclude that the duty of care imposed on schools by § 834 is one of “protection against any risk

from which it is foreseeable that some type of harm might occur.” Id. ¶ 12. We declined to do so

and rejected the notion that any potential risk of harm was enough to trigger the duty of care owed

by a school. Id. ¶ 13. Instead, we stressed that, “[b]y enacting 16 V.S.A. § 834, the Legislature

made clear that the standard of care owed to students is one of only ‘ordinary care’ and that

Vermont schools are neither equipped nor expected to provide constant supervision to students,

even those with a troubled history.” Id. ¶ 16.

¶ 15. Plaintiffs attempt to support their argument for the application of a duty beyond one

of ordinary care by pointing to Jordan’s status as a minor student. In Edson, we addressed this

argument and held that it did not alter the duty of care. We stated, “Nor did [the school] owe an

elevated duty of care to [the student] by virtue of her age, immaturity, or previous indiscretions,

as plaintiff suggests.” Id. ¶ 15. We recognized that the duty of ordinary care requires schools to

take age, circumstances, and a student’s disposition into account in exercising reasonable care, but

these factors do not raise the duty owed under § 834 beyond one of ordinary care. Id. We have

been consistent in this regard. See Baisley v. Missisquoi Cemetery Ass’n, 167 Vt. 473, 480, 708

8
A.2d 924, 928 (1998) (explaining that duty of reasonable person involves, where applicable, taking

into consideration children’s abilities to protect themselves, their instincts, and their impulses);

Bridge v. Woodstock Union High Sch. Dist., 127 Vt. 598, 599, 255 A.2d 683, 684 (1969) (holding

that bus driver owed student duty of due care which requires that driver take into account a

student’s age, situation, and disposition). Jordan’s tender age does not mean that Milton High

School owed him a heightened duty of care.

¶ 16. The undisputed facts support the conclusion that Milton High School did not breach

the duty of ordinary care because the school was not required to protect Jordan against an

unforeseeable assault by his teammates. Neither the common law nor § 834 allows the school to

be held liable in negligence for injury that a reasonable person could not have foreseen or

anticipated under the circumstances. Edson, 2007 VT 62, ¶ 10. The school did not have any

knowledge or notice to make the assault foreseeable and, in turn, did not owe Jordan a duty to

protect him from it. We acknowledge that the undisputed facts reveal a history of, at the least,

inappropriate, and, at times, sexually focused behavior among football team members. But the

existence of inappropriate behavior, even, perhaps, hazing, does not guide this analysis; rather, it

is the school’s complete lack of notice—undisputed on the summary judgment record—that is

determinative. Indeed, it is undisputed that the school was unaware of any of this conduct until

police began the investigation into Jordan’s 2012 death and the 2011 assault that preceded it. This

investigation did not occur until Spring 2013.5 So, the history of team members exposing their

genitals to other players, pretending to “hump” teammates, and shoving exposed genitals into other

5
The trial court made a finding that “[a]nother team member, J.B., described an incident
in which a team member allegedly held another team member down while a third team member
‘stuck something toward his butt.’ ” However, as with the rest of the record of inappropriate
behavior, harassment, and abuse by members of the football team, there is no evidence that the
school was made aware of this until police began investigating the instant assault in 2013. We,
therefore, do not consider the incident when determining whether the 2011 assault on Jordan was
foreseeable.
9
players is not relevant to the foreseeability analysis here because the school was never made aware

of this behavior until long after Jordan was assaulted, when interviewees finally made these reports

to investigators.

¶ 17. Furthermore, we have held that, “[i]n general, crimes committed by a third party

fall within the realm of the unforeseeable, and therefore cannot form the basis for liability.”

Id. ¶ 13. We have qualified this general rule when the defendant had special knowledge or notice

which would allow it to anticipate the wrongful act. Estate of Sumner v. Dep’t. of Soc. & Rehab.

Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (holding Department of Social and

Rehabilitative Services could be held liable for abuse of sisters when it had duty to anticipate their

sexual abuse by stepfather). Here, it is undisputed that Milton High School had no knowledge of

prior inappropriate physical behavior, directed at Jordan or any other student, by the perpetrators

of the assault. In 2011 the school could not have reasonably anticipated a physical assault, having

had no indication that a physical act like this might occur involving Jordan or the perpetrators.

Therefore, the duty of ordinary care did not require the school to protect him from it.

¶ 18. Plaintiffs maintain that the school’s discovery that students and football team

members played the “no homo” game in 2009 made the broomstick assault on Jordan foreseeable.

We disagree. It is perhaps foreseeable in the dictionary sense of that word—albeit unfortunate—

that high school students will conduct themselves inappropriately by engaging in any number of

verbal and physical behaviors. However, knowledge that students, including football team

members, are making homophobic comments to each other, with no accompanying physical

contact, did not put Milton High School on notice, by making it foreseeable, as that term is used

in tort law, that two of its students would forcibly assault another. Indeed, the New York Supreme

Court, Appellate Division, considered similar circumstances in an action brought by a high school

student against a school district to recover for an assault committed by a fellow student in the

school cafeteria. Sanzo v. Solvay Union Free Sch. Dist., 750 N.Y.S.2d 252, 253 (App. Div. 2002)

10
(mem.). The appellate court held that the trial court erred in denying the school district’s motion

for summary judgment because, even though the school principal “was aware of verbal taunting”

between the plaintiff and his assailant, the school had no knowledge of any prior “violent or

threatening behavior” between the two “that ‘would or should have forewarned the School

District’ of the assault.” Id. (quoting Hanley v. Hornbeck, 512 N.Y.S. 2d 262, 264 (App. Div.

1987)). The verbal conduct associated with the “no homo” game did not suffice to put Milton

High School on notice of the potential for a physical assault.

¶ 19. We also reject plaintiffs’ argument, which they support with the proposed

testimony of expert witnesses, that a nationwide epidemic of school hazing and harassment

contributed in making the assault on Jordan foreseeable.6 We considered this issue in Edson when

plaintiff argued that the “ ‘concept of foreseeability refers to generalized risks of the type of

incidents and injuries that occurred rather than predictability of the actual sequence of events.’ ”

2007 VT 62, ¶ 12 (quoting Fazzolari v. Portland Sch. Dist., 734 P.2d 1326, 1338 (1987)). We

distinguished the facts in Edson from those in Fazzolari. In Fazzolari, the Supreme Court of

Oregon held that “school officials’ [knowledge] of a generalized risk of sexual assault in the

vicinity of [a] school[,]” based on a previous sexual assault that occurred on school grounds and

reports of others, made a subsequent sexual assault foreseeable. 2007 VT 62, ¶ 14; Fazzolari, 734

P.2d at 1338. In contrast, we noted in Edson that the Vermont school “did not have the requisite

knowledge or notice” of the risk of a premeditated murder and that “[t]here was no allegation that

[the school] ‘was or should have been aware of such criminal conduct perpetrated near its

campus.’ ” 2007 VT 62, ¶ 14. Thus, we held that, “[a]bsent more specific notice of the impending

crime, [the school] had no legal duty to, and in all practicality could not, prevent [plaintiff’s

6
Defendants argue that the reports produced by the expert witnesses did not meet the
summary judgment standard requiring that the statement of undisputed facts be supported by
admissible evidence pursuant to V.R.C.P. 56(c)(1)(B) and (c)(2). We consider these expert
opinions on appeal in order to resolve the argument made by plaintiffs.
11
daughter’s] death.” Id. In summary, we have recognized that a generalized risk can contribute to

establishing foreseeability, but only when it is accompanied by some knowledge of specific,

similar acts or incidents of harm. That is not the case here. As we have explained, the playing of

the “no homo” game did not put Milton High School on notice of the subsequent criminal, forcible

act of assault. And there was no other conduct of which the school was aware at the time of the

assault in 2011 that would have put it on notice. Thus, we agree with other jurisdictions that a

generalized knowledge of harassment and hazing on other school campuses, without more, is not

sufficient evidence of foreseeability. See Mirand v. City of New York, 637 N.E.2d 263, 266 (N.Y.

1994) (“Actual or constructive notice to the school of prior similar conduct is generally required

because, obviously, school personnel cannot reasonably be expected to guard against all of the

sudden, spontaneous acts that take place among students daily . . . .”); Whitfield v. Brd. of Educ.,

789 N.Y.S.2d. 188, 189 (App. Div. 2005) (holding that claim for failure to provide adequate

supervision requires showing that school authorities had sufficiently specific knowledge or notice

of dangerous conduct which caused injury); Williams v. United Pentecostal Church Int’l, 115

S.W.3d 612, 615-16 (Tex. Ct. App. 2003) (rejecting argument that generalized knowledge of

prevalence of abuse of children in church setting satisfies foreseeability requirement in claim of

sexual abuse of children by pastor).7

¶ 20. We hold that summary judgment is appropriate here where the undisputed facts fail

to demonstrate that Milton High School had sufficiently specific knowledge of prior conduct by

football team members such that a forcible assault was foreseeable. Where the assault was not

foreseeable, the school had no duty to protect Jordan from it. Furthermore, the summary judgment

7
We disagree with the dissent that expert conclusions—based on information from other
locations—can make the duty of reasonable care a jury issue. This would undermine the Court’s
reasoning in Edson that generalized risks alone are not enough. Our holding protects Vermont
schools from second-guessing where no school official had a whiff of warning that a problem
existed. And, it continues to require schools to appropriately address problems as they come to
light.
12
record does not support the argument that the school breached the duty of ordinary care. Contrary

to plaintiffs’ argument that the issue of foreseeability belongs before a jury, “[s]ummary judgment

is appropriate when the record before the court clearly shows that there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law.” Gilman v. Me.

Mut. Fire Ins. Co., 2003 VT 55, ¶ 7, 175 Vt. 554, 830 A.2d 71.

¶ 21. Finally, plaintiffs argue that the court erred in granting defendants’ motion and

imposing sanctions on their attorney. We review a trial court’s imposition of sanctions for abuse

of discretion. State v. Mears, 170 Vt. 336, 345, 749 A.2d 600, 607 (2000). We will uphold the

ruling “unless the court’s discretion was either totally withheld or exercised on grounds clearly

untenable or unreasonable.” Id. (quotation omitted). The trial court did not err when it determined

that plaintiffs’ attorney knowingly violated Vermont Rule of Civil Procedure 26(b)(5)(A)8 and

acted in bad faith by using the information he had obtained to file a motion to strike, causing

defendants to have to respond and incur legal fees.

¶ 22. At a hearing on the motion for sanctions, plaintiffs’ attorney conceded that he had

purposefully contacted defendants’ expert witness in order to schedule and determine the costs of

a deposition of the expert. He also agreed that this email communication resulted in the witness

making a substantive statement which counsel believed was inconsistent with defendants’ expert

witness disclosure. Counsel then used this communication in support of a motion to strike.

Defendants incurred costs in responding to the motion.9 The trial court relied on V.R.C.P.

26(b)(5)(A)(i)-(iii) in concluding that the discovery rule provides only limited discovery of an

8
Rule 26 was recently amended to add a subsection. As a result, subsequent subsections
were renumbered, including the subsection relevant here. At the time of the trial court’s decision,
the relevant subsection was numbered as V.R.C.P. 26(b)(4)(A). Reporter’s Notes—2017
Amendment, V.R.C.P. 26. We refer to the Rule by its current numbering for convenience.
9
In its order imposing sanctions, the trial court did not identify the amount of the
reimbursement and only identified it as “the cost of preparing and handling the[] opposition to
Plaintiff’s motion to strike.”
13
opposing party’s expert witness through interrogatories, depositions, and the production of reports

or written opinions, serving to prohibit ex parte communication between the expert witness and

opposing counsel. Noting that Vermont’s expert witness discovery rule is patterned after the

analogous federal rule, the court cited American Bar Association Formal Opinion 93-378, which

states: “Although the Model Rules do not explicitly prohibit ex parte contacts with an opposing

party’s expert[,] . . . a lawyer who [does so] may violate Model Rule 3.4(c) if the matter is pending

in . . . a jurisdiction that has adopted [a] rule patterned after Federal Rule of Civil Procedure

26(b)(4)(A).” The court found that counsel could and should have scheduled the deposition and

determined its cost by contacting opposing counsel in the customary manner and that defendants

were prejudiced by the ex parte contact by being forced to respond to the motion to strike. The

court concluded that plaintiffs’ counsel acted in bad faith and ordered him to compensate

defendants for the costs of responding to the motion. See Lawson v. Brown’s Home Day Care

Ctr., Inc., 2004 VT 61, ¶ 14, 177 Vt. 528, 861 A.2d 1048 (mem.) (holding that court may sanction

attorneys for misconduct through its inherent powers but finding of bad faith must precede any

sanction based upon court’s inherent powers).

¶ 23. The trial court did not abuse its discretion in sanctioning counsel by requiring him

to compensate defendants. While counsel initially reached out to the expert for the purposes of

scheduling a deposition and assessing related costs, this communication resulted in the expert

making comments about the substance of his professional opinion. Rather than contacting defense

counsel to work toward the scheduling of a deposition, which is customary, plaintiffs’ attorney

contacted the expert witness directly, without notice to defense counsel. Rule 26(b)(5)(A) sets

limits on an attorney’s contact with an opposing party’s expert witness, and these traditional

methods were not followed. It is even more egregious that when counsel learned substantive

information from the expert, he did not immediately contact defense counsel to alert him that he

had been told something he believed was contrary to the expert witness disclosure. Instead,

14
counsel used the ill-gotten information as ammunition to file a motion to strike the expert witness.

The court did not abuse its discretion in finding that counsel acted in bad faith during this

combination of events and in ordering counsel to compensate defendants for their costs.

Affirmed.

FOR THE COURT:

Associate Justice

¶ 24. ROBINSON, J., dissenting. The majority’s decision usurps the role of the

factfinder in determining the applicable standard of care in the face of conflicting claims, and it

ignores expert testimony and statutory directives. For these reasons, I respectfully dissent.

¶ 25. I agree with the majority that the standard of care applicable to plaintiffs’ common

law negligence claim is one of ordinary care. See ante, ¶¶ 12-15. But in assessing whether

defendants breached that standard, the majority analyzes this case as if plaintiffs are only claiming

that defendants had sufficient notice of the risk that Jordan would be assaulted by his teammates

to trigger a generalized duty to protect him from this injury. The majority doesn’t adequately

grapple with plaintiffs’ broader argument that defendants failed to establish and administer a

hazing prevention and enforcement program that met the applicable standard of care, and that

Jordan’s injuries resulted from that failure.

¶ 26. Below, I lay out the considerable evidence plaintiffs proffered to support this legal

theory. Based on this evidence, I would reverse because the question of negligence is ordinarily

one for the jury. Expert testimony, as well as a statutory presumption, support plaintiffs’ claim

that defendants breached an applicable standard of conduct. The majority’s focus on

foreseeability, relying largely on cases addressing the foreseeability of a particular harm wrought

15
by a third party, misses the fact that the harm Jordan suffered is exactly the kind of harm anticipated

by the standard of care described by plaintiffs’ experts and codified in statute.

¶ 27. Plaintiffs relied on two expert reports to support their claim that defendants’

policies and practices concerning hazing prevention, detection, and enforcement fell below the

standard of ordinary care applicable to high schools in Vermont.

¶ 28. The first, Norman J. Pollard, was Dean of Students and Interim Assistant Vice

President of Student Affairs at a university in New York. In his report, he represents that he has

expertise in the field of hazing through research, education, and experience. He was principal

investigator in two national landmark surveys of hazing, serves on the board of a national hazing

prevention organization, has been a featured speaker on hazing prevention to various national

collegiate and secondary school associations, and has consulted with several university and high

school athletic departments, including University of Vermont, concerning their hazing prevention

programs. Dr. Pollard’s opinion rests on a thorough review of defendants’ hazing policy, their

implementation of that policy, Vermont laws relating to hazing, a resolution of the National

Federation of High Schools (NFHS) concerning hazing, and recommendations by hazing

prevention specialists for high school personnel and administrators.

¶ 29. Dr. Pollard opined that the record provided no evidence of defendants’ compliance

with Vermont state hazing law, NFHS’s guidelines, or Milton High School’s own hazing policies

and procedures for education, prevention, investigation, and adjudication. Had defendants

implemented industry-standard hazing-prevention practices and basic supervision, they would

have been aware of the culture of hazing that ran rampant within the football program. Dr. Pollard

noted that none of the staff or players acknowledged receiving any significant training or guidance

in how to prevent hazing on athletic teams. He explained that:

Based on the information in the provided materials, the
administrators and coaches either did not fulfill the NFHS obligation
to educate the membership on areas of hazing or they did such a

16
 poor job that it was not remarkable. Either way, the Milton High
School administration never followed through to confirm
compliance.

He further indicated that if the athletic department ever required a preseason meeting to discuss

the school’s policy and prohibition against hazing, it wasn’t memorable or effective. The school

cursorily developed manuals, forms, and lists, he noted, but it did little to no assessment or follow-

up to ensure the information was retained and implemented. And defendants did not implement

standard risk management strategies until several years after the events at issue here.

¶ 30. The second expert, Susan Lipkins, was a psychologist and expert on hazing. Dr.

Lipkins wrote a book, Preventing Hazing: How Parents, Teachers and Coaches Can Stop the

Violence, Harassment, and Humiliation; has appeared on over 100 radio and television programs;

has been quoted or published in multiple newspapers and magazines of national stature; and has

educated students and administrators on hazing issues. In evaluating this case, she reviewed

defendants’ policy, Vermont state law, and the case record.

¶ 31. Like Dr. Pollard, Dr. Lipkins opined that, by the fall of 2011, defendants failed to

implement appropriate hazing education, prevention, and intervention strategies. Dr. Pollard

identified twenty-seven ways in which defendants failed to meet the applicable standard of care.

Among other things, she asserted that defendants had failed to define hazing; disseminate a policy

relating to hazing and sexual harassment; provide education or training on hazing and sexual

harassment to coaches, administrators, teachers, students, parents, or other district employees; train

and designate specific personnel to process relevant information and make appropriate decisions;

provide multiple, confidential, and anonymous methods to report hazing or sexual harassment;

follow guidelines issued by the United States Department of Education; and comply with Vermont

statutory standards concerning hazing.

¶ 32. Given this evidence, there is no reason to depart from the general rule that the

applicable standard of care and breach thereof are questions for the jury. Plaintiffs’ expert

17
testimony creates a dispute of fact as to the applicable standard of care, and is reinforced by a

statutory presumption. This dispute is sufficient to defeat summary judgment for defendants. The

majority’s focus on the foreseeability of decedent’s injury is misplaced given the purpose of the

standards articulated by plaintiffs’ experts and reinforced by statute.

¶ 33. The question of negligence—what the applicable standard of care requires and

whether the defendant met that standard—is ordinarily a jury question. See Morway v. Trombly,

173 Vt. 266, 275, 789 A.2d 965, 971 (2001) (“Summary judgment is not appropriate in situations

involving facts that leave some doubt as to whether a reasonable jury would find the defendant

negligent. Particularly where there is no settled rule of diligence more specific than a general

reasonableness standard, ‘negligence is ordinarily a question for the jury.’ ” (quoting Baisley v.

Missisquoi Cemetery Ass’n, 167 Vt. 473, 480, 708 A.2d 924, 928 (1998))). As this Court has

previously explained:

Where the law has settled no rule of diligence, negligence is
ordinarily a question for the jury and it is a fact to be inferred from
the attending circumstances. It can be ruled as a matter of law only,
where the facts are undisputed and are so conclusive that but one
reasonable inference can be drawn therefrom. If the evidence
justifies opposing inferences, the question is always for the jury.

LaFaso v. LaFaso, 126 Vt. 90, 96, 223 A.2d 814, 819 (1966); see also Restatement (Third) of

Torts: Liability for Physical & Emotional Harm § 8(b) (2010) (“When, in light of all the facts

relating to the actor’s conduct, reasonable minds can differ as to whether the conduct lacks

reasonable care, it is the function of the jury to make that determination”); Restatement (Second)

of Torts § 285, Reporter’s Notes (1965) (explaining that if no standard of conduct has been

established by statute or court ruling on substantially identical facts, unless jury could not

reasonably find defendant’s conduct to be negligent, jury’s role encompasses defining standard of

care as applied to facts before it).

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 ¶ 34. Plaintiffs’ expert testimony that defendants’ hazing prevention and enforcement

policies fell below the prevailing standard of ordinary care is entirely appropriate in this context

and was sufficient to create a dispute as to the applicable standard of care.

¶ 35. Where standard of care involves specialized knowledge, expert testimony can help

the jury determine the standard of care. V.R.E. 702; see also id. Reporter’s Notes (“As to the

necessity of expert testimony, the rule is permissive only—such testimony may be heard when it

will assist the trier.”). Expert testimony can provide the jury with a framework for evaluating a

claim. For example, the U.S. Court of Appeals for the Eighth Circuit considered a plaintiff’s

negligence claim against a retailer for injuries the plaintiff suffered when he fell on a puddle of

undiluted liquid hand soap in a public restroom. Ray v. Wal-Mart Stores, Inc., 120 F.3d 882 (8th

Cir. 1997). The retailer appealed the trial court’s admission of expert testimony that the retailer’s

bathroom inspection program was inadequate and inferior to industry standards. The Eight Circuit

explained that the “testimony offered the jury a framework to assess whether [the retailer] breached

its duty of care to its customers.” Id. at 885; see also Haskenhoff v. Homeland Energy Sols., LLC,

897 N.W.2d 553, 600-01 (Iowa 2017) (affirming admission of expert testimony of human

resources professional concerning standard of practice for employers with respect to prevention of

sexual harassment and enforcement of sexual harassment policies).10

10
In some cases, expert testimony is required to establish the standard of care. See, e.g.,
Taylor v. Fletcher Allen Health Care, 2012 VT 86, ¶ 9, 192 Vt. 418, 60 A.3d 646 (explaining that
because “the human body and its treatment are extraordinarily complex subjects requiring a level
of education, training and skill not generally within our common understanding,” medical
malpractice plaintiffs must generally support their claims with expert testimony unless “the
violation of the standard of medical care is so apparent to be comprehensible to the lay trier of
fact” (quotations and alterations omitted)); Estate of Fleming v. Nicholson, 168 Vt. 495, 497, 724
A.2d 1026, 1028 (1998) (noting that expert testimony on standard of care generally required to
support legal malpractice claim unless lack of care is so apparent that only common knowledge
and experience are needed to comprehend it); see also Davis v. Bud & Papa, Inc., 885 F. Supp. 2d
85, 88 (D.D.C. 2012) (noting that in cases involving crowd control and public safety, courts have
often required expert testimony to define requisite standard of care). I do not contend that expert
testimony is required to support plaintiffs’ claims in this case, but do believe that given the
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 ¶ 36. Plaintiffs’ evidence on this point is sufficient to create a material dispute, defeating

summary judgment. The non-moving party is entitled to all reasonable doubts and inferences on

a motion for summary judgment. Provost v. Fletcher Allen Health Care, 2005 VT 115, ¶ 15, 179

Vt. 545, 890 A.2d 97. In Provost, this Court read an expert affidavit broadly to infer the applicable

standard of care, even when the expert affiant had not expressly articulated that standard. Id. ¶ 13

(noting that “better practice is for the affiant to expressly articulate the standard of care,” but

nevertheless inferring standard of care from affiant’s narrative). We explained that summary

judgment is improper where the evidence is subject to conflicting interpretations and emphasized

that “it is not for the trial judge to adjudicate who is more credible, plaintiff or defendants and their

affiants, in the context of a motion for summary judgment.” Id. ¶ 15 (quotation omitted).

Responding to critiques of the plaintiff’s expert affidavit, we noted that the doctor’s “expert

affidavit does more than make bare allegations. It lays out a theory of the case to be developed at

trial.” Id. ¶ 16. The expert affidavits in this case are far more explicit and comprehensive than the

affidavit at issue in Provost. The jury may ultimately conclude that the standard of care described

by plaintiffs’ experts is more exacting than the duty of ordinary care, but plaintiff’s expert

testimony is sufficient to create a dispute as to the standard of care and defendants’ breach thereof.

¶ 37. This expert evidence as to the standard of care for secondary schools is not tied to

a specific geographical location; it describes the duties of all secondary schools. Any suggestion

that the standard of ordinary care in Vermont is for some reason less exacting than the standard

applicable across the country is belied by Vermont statutes requiring schools to implement anti-

hazing policies meeting certain criteria—criteria plaintiffs’ experts have opined defendants failed

to meet. These statutes not only reinforce the expert testimony proffered by plaintiffs; evidence

relatively specialized nature of administering a school and overseeing sports programs, expert
testimony is a permissible way to help the jury determine the standard of care.
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of defendant’s failure to comply with the statutory requirements itself should defeat summary

judgment for defendant.

¶ 38. We have recognized that a safety statute may serve as rebuttable evidence that the

defendant breached the applicable standard of care, thereby shifting the burden of production to

the defendant. See Bacon v. Lascelles, 165 Vt. 214, 222, 678 A.2d 902, 907 (1996) (explaining

that “proof of a violation of the safety statute creates a prima facie case of negligence” that “raises

a rebuttable presumption of negligence and shifts the burden of production to the party against

whom the presumption operates”). We have adopted the Restatement (Second) of Torts § 286

(1965), “which defines the elements of a safety statute or regulation” that may establish the

standard of care. Dalmer v. State, 174 Vt. 157, 164, 811 A.2d 1214, 1222 (2002). Under the

Restatement, the statute or regulation must have been intended to protect the class of persons to

which the plaintiff belongs “against the particular hazard and harm that result[ed].” Restatement

(Second) of Torts § 286(a)-(d).

¶ 39. The Legislature has passed various anti-harassment and anti-hazing statutes to

protect students from harassment and hazing in our schools. One provision required each public

school to “adopt and implement a comprehensive plan for responding to student misbehavior,”

including “[a] description of behaviors on and off school grounds that constitute misconduct,

including harassment, bullying, and hazing particularly those behaviors that may be grounds for

expulsion.” 16 V.S.A. § 1161a(a)(6); see also 16 V.S.A. § 570(b) (effective May 2012) (requiring

school boards to “develop, adopt, ensure the enforcement of, and make available in the manner

described [by statute] harassment, hazing, and bullying prevention policies at least as stringent as

model policies developed by [the Secretary of Education]”). These statutes, targeted at Vermont’s

elementary and secondary schools, are intended to protect students from bullying, harassment, and

hazing—exactly the harm that befell Jordan. For that reason, the requirements of these statutes

are rebuttably presumed to reflect standards of care for purposes of a common law negligence

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claim. This reinforces the genuine dispute of fact as to the standard of care, and defendants’ breach

thereof, arising from plaintiffs’ experts’ opinions.

¶ 40. In the face of this expert evidence, the majority’s focus on the foreseeability of the

particular assault, or the lack of notice to defendants of ongoing hazing issues on the football team,

is misplaced. Our decision in Edson that a school is not liable in negligence for an attack on its

student by a third party that could not have been reasonably foreseen is unremarkable and

inapposite. 2007 VT 62. In that case, the Court concluded that murder of a student by a third

party unconnected with the school after the student voluntarily left school grounds without

permission was not sufficiently foreseeable under the circumstances of that case to support a claim

of negligence against the school. Id. ¶ 13. The standard of care asserted in this case does not arise

from some generalized duty to protect Jordan from this particular assault—a duty that necessarily

requires notice of a threat lest it morph into strict liability. And the assault in this case was student-

on-student, on school grounds; it was not perpetrated by a stranger to the school, off campus. Per

plaintiffs’ experts, the duty of ordinary care in the context of school administration requires that

defendants implement proactive measures to train faculty, staff, and students about hazing; provide

multiple effective mechanisms for reporting concerns; and affirmatively evaluate sports teams’

cultures in the face of a widespread practice of hazing-like behavior (the “no homo” game in 2009).

These duties do not depend on notice of a particular threat, whether individualized or teamwide.

These are duties that, per plaintiffs’ experts, applied to defendants based on professional standards

and statutory requirements without regard to actual notice of any specific, ongoing issues in the

football program. By contrast, a ruling that defendants are not liable unless they had actual notice

of threats to Jordan or others generally in the football program would encourage school

administrators to remain ignorant of issues concerning harassment and hazing at their schools,

rather than to proactively seek to prevent such threats.

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 ¶ 41. The relevant foreseeability in this case is tied to the defendants’ failure to

implement adequate hazing programs, not their failure to respond to particular threats of which

they had notice. The injury Jordan suffered is exactly the kind of injury that is a reasonably

foreseeable consequence of a failure to implement adequate hazing programs pursuant to the

standard of care described by plaintiffs’ experts and codified in state statute.

¶ 42. The majority has overridden this expert testimony on a factual question with its

own legal ruling. In doing so, the majority has failed to consider the evidence and inferences to

be drawn therefrom in the light most favorable to plaintiffs, has taken the question of the applicable

standard of care from the jury, and has apparently established a rule of law that essentially

immunizes schools from liability for injuries arising from their failure to meet statutory or

professional standards of care relative to the content and implementation of anti-hazing and anti-

harassment policies.

¶ 43. For the above reasons, I dissent.

¶ 44. I am authorized to state that Chief Justice Reiber joins this dissent.

Associate Justice

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