Supreme Court affirms ruling in Preavy case

Late hazing victim’s family claimed negligence

His attacker, Brandon Beliveau, was initially charged with felony sexual assault but pleaded down to simple assault and unlawful restraint. He served 12 days in jail.

Jordan’s mother, Tracy Stopford, and the Preavy estate sued MTSD in 2015, a day before the third anniversary of Jordan’s death.

The suit argued the district knew about inappropriate behavior on the football team and did nothing to stop it. Had they done something, officials could have prevented Jordan’s assault and his suicide, the family said.

A Vermont Superior Court judge dismissed the family’s motion for summary judgment in September 2017, saying they didn’t present enough evidence to prove the school was negligent in protecting Jordan from harm. They appealed to the Vermont Supreme Court this April.

Friday’s split ruling sided with the trial court: MTSD could not have foreseen Jordan’s attack and therefore can’t be held liable for failing to protect him, the majority said.

“We acknowledge that the undisputed facts reveal a history of, at the least, inappropriate, and at times, sexually focused behavior,” Associate Justice Karen Carroll wrote for the majority, but this “does not guide this analysis.”

The family had argued the school had notice because it previously disciplined the team in 2009 for playing the “no-homo[sexual]” game in which players would compliment one another then quickly clarify they’re not gay.

MHS held a meeting about the game, but the Preavys had said the ritual continued without coaches’ knowledge. Then-athletic director Joe Solomon placed the team on “behavioral probation” in fall 2010, threatening to cancel the season if the misconduct continued.

But Friday, the highest court said the school’s knowledge of students slinging homophobic slurs isn’t enough to predict a physical assault years later. It also took down the Preavys’ argument that the nationwide culture of hazing and harassment was enough to put MTSD on notice for future harm.

Former Chittenden County State’s Attorney TJ Donovan stands with Jordan Preavy’s family in criminal court in 2014. L to R: Donovan, Tracy Stopford and Karen and Sean Preavy. (File photo by Courtney Lamdin)

“There was no other conduct of which the school was aware of at the time of the assault in 2011 that would have put it on notice,”  Carroll wrote.

In her dissent, Associate Justice Beth Robinson said the majority ignored the Preavys’ experts who said even though MTSD has anti-hazing policies and procedures, it never ensured they were implemented. One expert, Dr. Susan Lipkins, essentially said Milton’s policy didn’t even comply with Vermont law on hazing, Robinson wrote.

She also cited Dr. Norman Pollard, an expert renowned for hazing prevention research and consulting, who concluded no staff or player in Milton “acknowledged receiving any significant training or guidance” in preventing hazing behavior.

If they did, the lessons weren’t “memorable or effective,” Robinson said, paraphrasing Pollard’s report. She agreed with the Preavys’ argument that juries typically determine negligence claims, helped by experts such as Pollard and Lipkins.

Robinson further said the case law relied upon to establish Milton’s duty of care to Jordan was misplaced. Actual notice isn’t the point: Rather, it was Milton’s failure to implement an anti-hazing program that caused Jordan’s injury, Robinson said.

The majority “has apparently established a rule of law that essentially immunizes schools” from liability in cases like Jordan’s, she wrote. Chief Justice Paul Reiber joined Robinson’s dissent.

Reached Friday afternoon, MTSD’s attorney Pietro Lynn said the district was very pleased with the result.

“The underlying facts are tragic, but we are gratified that the court ruled the district acted appropriately in all respects,” he said. 

The ruling could have a cascading effect on a pending case filed by another hazing victim from Milton who also claimed negligence.

Lynn said in August he was waiting for the Vermont Supreme Court to rule on Preavy before moving for summary judgment in this other case. He is also representing Essex Westford School District in a similar case in which parents allege their son was hazed on the Essex High School hockey team.

Friday, he confirmed this ruling directly applies to those other cases. 

“In both of those cases, no notice was provided to the school of any pre-incident misconduct by students,” he said. “Under those circumstances, the Preavy ruling ensures there can be no liability.”

Preavy family attorney Robert Appel said the highest court’s decision effectively ends his client’s ability to litigate.

“Given the nature of our claims, there was and is no federal question that could trigger federal court jurisdiction,” he wrote in an email. “We are devastatingly disappointed and firmly believe that the dissent got it right.”

Monday morning, Stopford emailed a page-long statement to the Independent. In it, she decries the ruling, saying it sets a dangerous legal precedent and says hazing and assault on athletic teams are a nationwide epidemic.

“The civil judicial system has failed our family every step of the way,” she wrote. “Victims are victimized again.”

Stopford said the issue can’t be attributed to scapegoats of “boys will be boys” and “poor parenting” and dispelled the notion her family was in this legal battle for money.

“The outcome of Jordan’s case was bigger than us,” she wrote. “My family will never stop loving and remembering our son every moment of every day, but not only will we remember the joy of his life, we will remember the wrong brought against him and other victims of school hazing by a very jaundiced legal system.”

Friday’s ruling was a significant chapter in the scandal and related fallout that left a black mark on the football program and shook the Milton community. 

In total, five former players were criminally charged in the case, which ended in plea deals for various offenses. Under community pressure, the school board hired a private investigator to look into school officials’ handling of hazing allegations. The P.I., a retired Vermont State Police captain, concluded the district failed its students. Only then-superintendent John Barone was fired as a result.

Concurrently, Stopford and the Preavys transitioned from victims to activists, joining forces with then-Milton Rep. Ron Hubert to lobby passage of a bill to strengthen Vermont’s mandated abuse reporting requirements. Former Gov. Peter Shumlin signed it into law in June 2015.

The case gained nationwide notoriety in 2016 when ESPN featured Jordan’s story in an hourlong special called “Hazing: The Hidden Horror.” In its investigation, ESPN found more than 40 instances of sexual hazing in the U.S. and Canada between 2011-16.

NOTE: This story was first published Friday, Nov. 16 but has since been updated to include a statement from Jordan Preavy’s mother, Tracy Stopford.

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