Town moves to dismiss sexual abuse case; plaintiffs respond

The town and Board of Education have asked that a suit brought by a family alleging their daughter was sexually abused by a preschool paraprofessional at Miller-Driscoll School in 2012 be dismissed.

The town, in its filing, alleges the preschool girl’s behavior at times was “flirtatious.”

The family, arguing against dismissal of the suit, counters that a detective told the superintendent of schools he would be “concerned” if his child attended a school where the paraprofessional worked.

The case is on Stamford Superior court’s short calendar for April 24, and jury selection is scheduled for early September.

The motion to dismiss was filed March 2, and the plaintiffs filed their response in opposition on March 31.

The lawsuit contends the girl, known as Girl Doe, who was a preschool student at Miller-Driscoll School, was sexually abused by Eric Von Kohorn, a former paraprofessional employed by the Wilton school district. The suit, which was filed Oct. 7, 2015, alleges Von Kohorn sexually abused the girl in December 2012, and when notified, the school district did not act appropriately to investigate or protect her or other students from him.

Under circumstances unrelated to the lawsuit, Von Kohorn was arrested in August 2014 on charges of first-degree possession of child pornogrpahy and promoting a minor in an obscene performance. After pleading guilty to one count of illegal possession of child pornography in the second degree, he was sentenced in October 2015 to six years in prison, suspended after two years, and 10 years probation.

As defendants in the suit, the town and board support their motion by claiming governmental immunity. The motion also says the plaintiffs’ claims for negligent infliction of emotional distress fail as a matter of law.
Defendants’ motion
The defendants’ memorandum supporting the motion for summary judgment claims the following as  statements of facts:

  • Girl Doe had been referred to preschool at Miller-Driscoll after being diagnosed as eligible for special services.

  • Girl Doe, according to the testimony of preschool director Fred Rapczynski, had a history of being untruthful. Specifically, Rapczynski concluded the girl had made up a story about an “inappropriate” incident with a boy student.

  • Mother Doe told Rapczynski she struggled to manage her daughter.

  • Girl Doe’s teacher, according to Rapczynski’s deposition, considered her behavior “provocative” or “flirtatious.” As a result of that and the claim of inappropriate statements from the boy in her class, Rapczynski spoke to the girl’s parents about how she may have acquired “adult” knowledge, the memorandum says. It stresses these conversations took place in November and December of 2012, prior to any complaint about Von Kohorn.

  • The alleged incident took place on Dec. 21, 2012, when the girl came home with irritation on her genitals. She told her mother “Mr. Eric wiped me too hard,” when he escorted her to the bathroom. Her parents took no photos of the area nor did they take her to a pediatrician to be examined or call the police.

  • Dec. 21 was the last day of school before winter break, and while the girl’s father called the school, he did not reach anyone and did not speak with Rapczynski until Jan. 3, 2013, when they communicated by phone.

  • Following their discussion, Rapczynski began an investigation, and was unable to find an opportunity for Von Kohorn to have touched the girl because he was assigned to a different classroom.

  • He made a report on Jan. 7 to the state Department of Children and Families, both written and by phone.

  • When he learned, after filing his report to DCF, from the girl’s mother that Von Kohorn had escorted the girl into the building because she needed to use the bathroom, he filed a second DCF report on Jan. 8. DCF sent a letter stating the complaint did not meet the statutory requirement.

  • Up to this point, the school’s toileting policy was conveyed orally to staff, but Rapczynski ensured it was formalized in writing. He also ensured Von Kohorn would not be assigned to the girl’s classroom. Von Kohorn’s supervising teacher was informed of the complaint against him so she could monitor him more closely. Rapczynski concluded Von Kohorn did not pose a threat to any child.

  • In the fall of 2013, Rapczynski determined he needed to assign Von Kohorn to assist a student in the same classroom as Girl Doe. He explained to her parents he would have no direct interaction with her and the parents gave their permission for the assignment. From January to the fall of 2013, the girl’s parents reported no changes in her behavior that would support the complaint about Von Kohorn and the girl made no additional complaints when he was in her classroom in the fall 2013 semester.

  • Girl Doe is in second grade now and no longer receives special services.

Plaintiffs’ response
In their reply to the motion, the family’s attorney argues principles of immunity do not apply because Wilton has admitted its employees were acting in a “ministerial rather than discretionary capacity” and plaintiffs were “identifiable persons subject to the threat of imminent harm,” which is a recognized exception to municipal immunity defense.

Their brief also argues that Wilton staff members violated policies designed to protect school children and placed the child under the threat of harm. It calls decisions made by Wilton’s educational staff as “shocking.”

The plaintiffs list as facts:

  • Von Kohorn misrepresented his experience and qualifications to work with children, something the district did not learn because it never contacted a reference from his previous job at a school in Norwalk.

  • Girl Doe was fully toilet-trained and did not require assistance in the bathroom.

  • Miller-Driscoll had a policy that prohibited Von Kohorn from entering the bathroom alone with the girl and also prohibited other staff members from allowing him to do so.

  • State statutes and school policy required Rapczynski to make a written report to DCF within 48 hours as soon as he had “reasonable cause to suspect or believe that a child under the age of 18 has been abused.” He did not report the incident until four days later and only because the girl’s father requested it.

  • Rapczynski accepted Von Kohorn’s version of events — that he was never alone with the girl — at face value.

  • The girl’s mother said she saw Von Kohorn escort the girl into the building.

  • Von Kohorn later admitted he took the girl to the bathroom but said he told another staff member he was doing so. Rapczynski testified it was likely other staff members would have seen him do so. This is in direct violation of school policy that prohibited male staff members from assisting female students in toileting under any circumstances and required staff members to prevent others from violating the policy.

  • Superintendent Kevin Smith testified that when Von Kohorn took the girl into the bathroom the situation posed an imminent threat to her.

  • Rapczynski did not inform the girl’s parents that Von Kohorn admitted he took the girl into the bathroom, leaving them under the mistaken belief Von Kohorn had never been alone with the girl and so never had the opportunity to assault her.

  • Smith, in his testimony, agreed Rapczynski had a “hard and fast obligation” to give them this information and he did not have “discretion” to withhold it.

  • This led the parents to think the girl was untrustworthy and did not require further evaluation or treatment for sexual abuse. It also led her parents to believe continued contact between Von Kohorn and the girl did not pose any threat.

  • Wilton admitted no one from Miller-Driscoll ever reached any conclusion about whether Von Kohorn sexually abused the girl before allowing him continued contact with her and other children at school.

  • After Von Kohorn’s arrest, Smith learned from police about disturbing photos and videos on his computer. “An investigating detective told Dr. Smith [according to his testimony] that “[i]f I was a parent [of a child exposed to Von Kohorn in the Wilton Public Schools], I would be very concerned.

The defendants claim that in Connecticut, “the duty to supervise school children is a discretionary governmental duty, rather than a ministerial duty.” It says the state Supreme Court has also held that supervision of public school employees is also a discretionary act.

The plaintiffs say that because there was a school policy that required staff to act without discretion, that constitutes a “ministerial” duty.

Defendants claim the imminent harm exception applies “when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.” They say there is no admissible evidence staff members could know Von Kohorn intended to take the girl to the bathroom.”

Plaintiffs say the girl was clearly an identifiable victim and allowing her to be taken into the bathroom alone by Von Kohorn subjected her to the threat of imminent harm, something Smith, Assistant Superintendent Ann Paul and school social worker James Martin admitted.

The town and Board of Education further replied on April 14 that Von Kohorn’s arrest should not be considered by the court. Their reply also argues Von Kohorn’s statement he informed another school staff member he was taking the girl to the bathroom is inadmissible because it is hearsay.

They claim the girl was not an identifiable victim because harm was not apparent to any school employee on the date in question — Dec. 21, 2013.

To read the motion to dismiss, click here.

To read the memorandum in support of the motion to dismiss, click here.

To read the plaintiffs’ response to the motion to dismiss, click here.

To read the defendants’ reply in support of the motion to dismiss, click here.