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01/13/95 D. A. C. v. AVERY THRASHER

January 13, 1995

D. A. C., A MINOR SUING BY AND THROUGH HER MOTHER AND NEXT FRIEND D. D.; AND D. D.
v.
AVERY THRASHER



Appeal from Etowah Circuit Court. (CV-93-425). Roy S. Moore, Trial Judge.

As Corrected. Rehearing Denied February 10, 1995. Released for Publication May 27, 1995.

Houston, Maddox, Almon, Shores, Ingram, and Cook, JJ., concur. Kennedy, J., Dissents.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

The plaintiffs, D.A.C., a minor suing by and through her mother and next friend, D.D., and D.D., individually, appeal from a summary judgment for the defendant, Avery Thrasher, D.A.C.'s high school principal, in this action by D.A.C. for damages under state and federal law for the principal's alleged improper supervision of a teacher. *fn1 We affirm.

D.A.C. alleged in her complaint that she had been sexually molested by one of her teachers. Her state law claims were based on allegations that, several years before the incident made the basis of her action, Thrasher had negligently or wantonly failed to disclose to the superintendent of the school system the names of two female students who had complained that the teacher had made improper sexual advances. One of these students spoke directly with Thrasher; *fn2 Thrasher became aware of the other student's name through the student's father. *fn3 D.A.C. contended that the teacher's employment would have been terminated at that time if Thrasher had given those names to the superintendent; she argued that Thrasher's inaction allowed the teacher to remain in the school and that that inaction had proximately caused her injuries. D.A.C.'s federal law claim was based on 42 U.S.C. § 1983. In connection with that claim, D.A.C., relying on Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir. 1989), cert. denied, 493 U.S. 1044, 107 L. Ed. 2d 835, 110 S. Ct. 840 (1990), and Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994), cert. denied, Lankford v. Doe, 130 L. Ed. 2d 25, 115 S. Ct. 70 (1994), argued that the evidence was sufficient to show that Thrasher, by not disclosing the names of the two female students to the superintendent, had demonstrated "deliberate indifference" toward her constitutional right to bodily integrity and that that indifference had proximately caused her injuries. The trial court concluded that D.A.C.'s state law claims were barred under the doctrine of discretionary function immunity and that Thrasher was entitled to a judgment as a matter of law on D.A.C.'s federal law claim on the ground that the evidence was insufficient, under Stoneking and Doe, to show deliberate indifference to D.A.C.'s constitutional rights. The trial court also ruled that the evidence was insufficient for a jury to find that Thrasher's failure to disclose the names of the two female students to the superintendent was a proximate cause of D.A.C.'s injuries.

After carefully reviewing the evidence in the light most favorable to the plaintiffs, see Motes v. Matthews, 497 So. 2d 1121 (Ala. 1986), we hold that the summary judgment was proper. Proximate cause was a necessary element of D.A.C.'s claims. It is well settled in this state that damages claims cannot be presented to a jury in the absence of sufficient evidence of an unbroken sequence of cause and effect, i.e., evidence that the act complained of was the proximate cause of the injury. See, e.g., Alabama Power Co. v. Bryant, 226 Ala. 251, 254, 146 So. 602, 604-05 (1933), wherein this Court stated:

"We have a well-defined rule that the burden is upon 'plaintiffs to show by an unbroken sequence of cause and effect, that the negligence alleged was the proximate cause of the intestate's injury and death.' Connors-Weyman Steel Co. v. Kilgore, 202 Ala. 372, 80 So. 454, 455 [(1918)]. For when 'the evidence leaves it uncertain as to whether the cause of the injury was something for which defendant was responsible, or something for which it was not responsible, there is a failure of proof, and the jury cannot be permitted to guess at the real cause.' Carlisle v. Central of Georgia R. Co., 183 Ala. 195, 62 So. 759 [(1913)]. And 'the mere possibility that the negligence of defendant caused the injury without evidence thereof, is not sufficient to carry the case to the jury, or to support a verdict.' Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33 [(1917)]. And 'where it was merely conjectural whether death of a servant resulted from negligence for which the master was liable or from other cause, there can be no recovery.' St. Louis & S.F.R. Co. v. Dorman, 205 Ala. 609, 89 So. 70 [(1921)].

"And 'where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause.' American Cast Iron Pipe Co. v. Landrum, 183 Ala. 132, 62 So. 757, 758 [(1931)]."

See, also, Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932 (Ala. 1983).

The superintendent of the school system testified as follows regarding the accusations that had been made by the two female students:

"A. No. No. I asked [Thrasher] to investigate everything he could and to get any evidence we had, and if we could get any evidence, we would proceed with a due process hearing.

"....

"Q. Due process hearing, what is ...


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