The Vermont Supreme Court will not reconsider its November decision that upheld the dismissal of a hazing victim’s lawsuit against Milton Town School District, a ruling last month says.
The family of late hazing victim Jordan Preavy sued MTSD in 2015 for negligence, alleging it failed to protect their son from being sodomized with a broomstick by fellow football players at a team dinner on school grounds.
A lower court judge dismissed the suit in September 2017, saying the family didn’t provide enough evidence to support their claims that Milton school leaders knew about inappropriate behavior on the team and did nothing to stop it.
The family appealed to the Vermont Supreme Court last April, and in November, justices issued a 3-2 decision that concluded the lower court was correct to drop the suit.
Soon after, Preavy family attorney Robert Appel filed a motion for reconsideration, a last-ditch, hail Mary effort to ask permission to reargue the case. He hoped to sway at least one of the three majority judges to change their minds, Appel said.
Filed December 3, the motion says the court’s opinion “misapprehended a key fact” that could “very well change the legal analysis” if the case were reconsidered. Appel wrote the court was incorrect in writing that Jordan’s assault occurred on the soccer field and “was separated from the adults attending the dinner.”
Rather, Appel said, two witnesses said in sworn testimony “the assault took place no more than 10 to 15 feet from the blockhouse,” referring to the team’s former locker room, a storage shed adjacent to the football field.
The distinction is “highly pertinent,” Appel wrote. He pointed to testimony by former student and witness Derryk O’Grady who told the Chittenden Unit for Special Investigations the attack occurred at the blockhouse. The family had sought to prove MTSD had neglected to supervise students there.
In a footnote, Appel wrote that even MHS principal Anne Blake testified that she never set foot in the blockhouse until after O’Grady reported the incident – despite being a Milton principal for nearly 15 years.
The court’s opinion “implies that the perpetrators and the victim somehow wandered off from the location of the team dinner … and outside a reasonable zone of supervision,” Appel wrote. “The undisputed record does not support such a factual finding.”
The motion also drew on testimony from one of Jordan’s attackers, Ryan Carlson, who told CUSI there were multiple witnesses to Jordan’s assault, whereas the court opinion implied only Carlson and the other perpetrator, Brandon Beliveau, were present.
If a group of players suddenly went out of sight range at the mandatory team event, it “would give rise to a need to immediately investigate,” as is adults’ “ordinary duty of care,” Appel wrote.
That last phrasing stems from a court decision known as Edson, a case filed against Barre Supervisory Union in 2007 that (successfully) informed MTSD’s requests to dismiss the case.
In Edson, the court found the district didn’t owe a Barre high school student “a duty of supervision … under the circumstances” and, as such, did not cause her subsequent off-campus assault and murder. In that case, the student left school without permission.
Using Edson was inappropriate since Jordan’s situation was markedly different, Appel said, and the court’s ruling gives school districts a free pass.
In closing, Appel asked to submit a briefing and for another oral argument.
The court denied the motion in a one-sentence entry order on December 10, saying Appel filed too late, and even so, failed to identify any overlooked facts.
Reached last week, Appel said he disagrees that his motion was untimely.
“Perhaps I was a day late, not that it matters,” he wrote in an email. “The court virtually never grants a motion to reargue.”
Meanwhile another lawsuit – very similar to the one filed by Jordan’s family – is still pending in Vermont Superior Court. Pietro Lynn, an attorney who represented MTSD in the Preavy case, expects that case will also be dismissed once he files a motion for summary judgment, he told the Milton Independent last fall.