Milton High School

The Milton High School sign is seen in this file photo.

MONTPELIER — After almost four years of litigation, the civil lawsuit made against the Milton Town School District (MTSD) by a former Milton High School (MHS) student has come to an after the Vermont Supreme Court on Jan. 15 upheld the lower court’s decision.

Following a five-day trial in November 2019, the jury in Chittenden County Superior Court ordered the school district to pay the former student $466,666 for failing to properly protect the football player, who was 14 years old at the time, after a sexual assault to occurred during an off-campus team dinner in 2012 at the house of another player’s parents. The Messenger does not typically reveal the identities of victims of sexual assault.

“The Vermont Supreme Court brought justice to our client by upholding the full award of money damages and by upholding the jury’s finding that the Milton High School administration failed to supervise — and therefore disregarded the safety of — its own football players, including our client,” said Jerry O’Neill, legal counsel for the plaintiff. “Importantly, the Vermont Supreme Court also rejected the offensive notion that our client was in any way to blame for his own sexual assault.”

The school district’s appeal argued that it had no duty to protect a student during what was an off-campus football team function, at which there were no school employees or other students who had been specifically identified as posing a risk of harm to others. It also argued that there was an error made in how the jury calculated the amount that was ordered to be paid.

The plaintiff’s cross-appeal argued that there had been no error made in the payment calculation, that the court had failed the student in granting judgment against him on his claim that the district violated the Vermont Public Accommodations Act (VPAA), and that the court had refused to instruct the jury on punitive damages.

Pietro Lynn, who represented the school district, had no comment while MTSD Superintendent Amy Rex said she was not familiar with the appeal.

Since the issue is a matter of state law, there cannot be an appeal by either party to the U.S. Supreme Court.

Background

While the assault on the plaintiff occurred in October 2012, similar instances which took place before that were brought into the picture to show that it was not an isolated incident among members of the MHS football program. Most notably was the sexual assault of team member Jordan Preavy in September of 2011 which preceded Preavy taking his own life in August 2012 — two months prior to the assault of the second known victim.

“Based on the materials submitted by the parties, the court concluded that a reasonable jury could determine that these assertions were accurate and that the assault on plaintiff was foreseeable,” read the Vermont Supreme Court opinion. It went on to say that, because questions surrounding the foreseeability of the former student’s assault were “heavily fact-dependent and hotly disputed,” the case did not make itself subject to appeal on the grounds of the district’s contention.

The then-high school principal, director of athletics, and district superintendent were made aware of the incident, according to court documents, but it was contested during trial as to exactly when their attention was brought to the matter — making way for the district to contest its ability to have known something like that would happen again.

Court documents state that the athletic director claimed he didn’t learn of the assault until May or June of 2013. However, testimony from another player who told his father, who then informed the superintendent in the presence of the athletic director, conflicted with that account.

“Milton High School administrators chose not to take actions that would have prevented the assault on our client,” said O’Neill. “It was a complete failure of leadership at Milton High School.”

Court documents state that during the October 2012 team dinner, at which there were nine or 10 members of the football team, the assault victim had been dragged to the basement and held down on a couch. A pool cue was then forcibly inserted over his clothes and into his rectum.

In April 2014, the Vermont Department for Children and Families notified the Chittenden Unit for Special Investigations after being contacted by a parent who claimed their son had witnessed the 2012 victim being taunted for the assault. In August of that year, five former Milton High students were cited into court for actions related to hazing, harassment, and assault. They would all plead guilty to charges.

The 2012 victim then sued not only the school district but the Town of Milton and the Town of Milton School Board on April 28, 2017. The lawsuits against the town and the school board were later dropped.

The jury’s initial order that the victim receive $280,000 included a decision by the jury that the victim had been 40% at fault, according to court documents.

The student’s counsel argued that, as a 14-year-old, the student was unable to be negligent in the situation, and the court agreed, giving the school district the option to pay the additional $186,666 or have a new trial. The school district chose the former before appealing.

The Supreme Court opinion ruling stated that the trial court was wrong in allowing the jury to consider comparative negligence in the first place, “because no reasonable jury could conclude, based on the evidence presented at trial, that plaintiff was contributorily negligent in attending the October 2012 dinner.”

The jury also found in favor of the district on the plaintiff’s claim that the district was in violation of the VPAA and that it had failed to prevent and remediate the harassment of its students, including hazing by members of the football team.

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