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Part II: Child Victims Act lawsuit against Wellsville Central Schools

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A look inside Wellsville Central Schools defense arguments

By Andrew Harris

A civil lawsuit has multiple phases, which begin with a formal complaint. As provided to readers in the general overview of this case published on Monday, the complaint against WCS is a very serious allegation. The plaintiff in this case alleges that a former janitor in the Wellsville Middle School assaulted her multiple times over multiple years on school grounds between 1980 and 1982. The crimes were reported over forty years later within the legal opportunity provided by the Child Victims Act of 2019.

After the complaint is made and a civil action has commenced, both parties participate in the “discovery phase,” or a mutual presentation and review of evidence. The evidence is considered by both parties and the court to provide the both the defense and the plaintiff all the necessary information they require to make the big decisions: The judge can dismiss the case on certain grounds and if not, the parties must choose to settle or go to trial.

So far in NYS, every case brought forth via the 2019 Child Victims Act, has either been dismissed, settled out of court, or is still in process. The case against Wellsville Central Schools appears to be the first of its kind to actually go to trial. That unique aspect of the case leads us to the discuss that most obvious question: Why is this case going to trial?

Wellsville Central School District Superintendent David Foster was asked that question and he replied:

“The alleged perpetrator in this case was never an employee of the school district.  Wellsville will present a strong case showing that the individual named in these tragic allegations was never employed by our District.”

That statement from Foster reflects the first point in the general argument laid out by the school district legal team when they asked the court to dismiss the lawsuit. This first point made in the request for dismissal was that the school was simply not liable for the conduct of the alleged child abuser because he wasn’t an employee.

The school doesn’t argue that the alleged child abuser was on school grounds performing cleaning duties via the Allegany County Department of Social Services. He was part of a social services work program which placed able bodied recipients of social services into jobs like school janitors. The alleged child abuser was never directly employed by the school for the cleaning services, therefore the district argues it should not be held liable for his actions while in the school.

Wellsville Central Schools defense continues with a second point in the argument, stating that the plaintiff’s claim of abuse fails on three technicalities. The first is, that the alleged abuser was acting outside the scope of his employment at the time of the reported abusive acts. This defense, largely a technical argument, suggests that the district is not liable for the acts of an employee if they are outside of the scope of employment. In essence, the school is stating that because the abuse did not happen in the course of working as a custodian, the school is not liable for the acts.

The second technical defense is that the district contends, “The Plaintiff’s alleged notice statement is incredible as a matter of law,” and the third argument is that the school district was not properly notified of the abuse. Within these arguments, Wellsville Schools essentially states that plaintiff’s claim of abuse lack credibility. This argument laid out by the defense demands some explaining.

The plaintiff reports that she disclosed the alleged abuse to a school administrator after an in-classroom conflict with the alleged abusers sister. The plaintiff states that after the incident in the classroom she disclosed the alleged abuse to the school administrator. That disclosure is being argued by the district as lacking credibility. The administrator whom the plaintiff reported the abuse to, claims no memory of the incident or of receiving any report of abuse. No other students or school employees are on record supporting the plaintiff’s claim. The school claims that it is a matter of “he said, she said,” which the school argues does not meet the reporting standards set forth by New York State legal precedent. Wellsville Central School’s defense continues on, pointing out that the plaintiff is unable to recall the name of the teacher or any of the students present during the classroom altercation. Additionally, the defense notes that within the plaintiff’s disciplinary file, no mention of her reporting the abuse exists. The defense goes on to state that the plaintiff’s statements about the reporting of abuse are inconsistent based on her deposition in the case.

A final argument made by the defense on this point is centered around the timing of the report of alleged abuse. In the plaintiff’s statements she explains that she reported the abuse to a “interim principal” in, “September 1980, or September-ish.” The defense finds error in this statement because the administrator named did not assume the role of “interim principal,” until December of 1980.

To summarize, the Wellsville Central School District does not believe they are liable for the abuse outlined in the complaint because the alleged abuser was technically not a school employee. The defense of the school lays doubt on the credibility of the plaintiff’s deposition testimony based on the lack of corroborating witnesses, including school administration, and inconsistencies in the details of her reporting the abuse. Wellsville Central School’s legal defense continues into arguments that are technical in nature. For the sake of brevity, and because the first two points of defense are the most substantive, the remainder will not be discussed in detail at this time. The defense lays out these additional arguments as well:

III Plaintiff’s Emotional Distress Claims are Unfounded and Duplicative

IV Plaintiff’s Negligent Misrepresentation Claim Fails to State A Claim

V Plaintiff’s Federal Law Claims are Untimely

VI Plaintiff’s Claim Alleging Failure to Report Fails Insofar as Wade Cannot Be Deemed A ‘Person Legally Responsible’ And Because There Is No Evidence Of Any Knowing And Willful Failure On The Part Of Any Defendant

This concludes our reporting on Wellsville Central Schools defense of this lawsuit. This analysis is based on the document below,  Memorandum of Law in support of Defendants’ Motion for Summary Judgment. A WARNING: This document contains graphic and upsetting content.


On Friday, Part III of this overview of the case that is headed to jury selection on March 30, 2022 will be presented.  This third installment will focus on the plaintiff’s legal response to the Defendant’s motion above, which was largely rejected by the court allowing the lawsuit to move toward a jury trial.

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