County attorneys in Seneca Valley rape case say defendants can’t be sued for more than $400,000

County attorneys in Seneca Valley rape case say defendants can’t be sued for more than $400,000

A member of 2018 JV football team is suing, alleging he was raped in unsupervised locker room

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Attorneys representing Seneca Valley High School coaches and administrators in a lawsuit related to a rape case are urging a judge to cap any potential award in the case at $400,000, saying the defendants did not act with malice or gross negligence.

A member of the school’s 2018 junior varsity football team is suing school officials, saying he was raped in an unsupervised locker room in 2018 at the high school in Germantown. The lawsuit alleges that school officials were negligent in not preventing the attack despite knowing that other sexual assaults happened in Montgomery County high school locker rooms.

The player, a minor referred to as “John Doe #1” in the lawsuit, alleges that he was raped on Sept. 17, 2018, before practice when multiple football players pulled his pants and underwear down and “penetrated, touched, assaulted and slapped” him.

Criminal charges were not filed at the time.

The lawsuit names Athletic Director Jesse Irvin, Principal Marc Cohen, varsity coach Fred Kim and junior varsity coach Cody Martin as individual defendants. The Board of Education is also named as a defendant.

The complaint seeks damages against the defendants “individually, jointly and severally” in an amount exceeding $75,000 plus litigation costs.

The school board and the individual school officials are being represented by Montgomery County Attorney Marc Hansen and others in the county attorney’s office, according to court documents.

Attorneys for the county, in a motion filed June 16, wrote that the plaintiffs didn’t allege in their complaint that individual defendants “acted outside of their scope of employment or with malice.”

“Further, plaintiffs explicitly conceded that the complaint does not allege the individual defendants acted with gross negligence. The parties agree that the plaintiffs have asserted only one count of negligence in their complaints and that there is presently no cause of action in the complaints for gross negligence,” the motion states.

The county attorneys assert in their motion that the school board is immune to claims of more than $400,000 under state law, which states that “a county board member, acting within the scope of the member’s authority, without malice and gross negligence, is not personally liable for damages resulting from a tortious act or omission…”

The law states that a county board of education can claim sovereign immunity to any amount above $400,000 or an amount above the limit of its insurance policy.

The motion also states that individual defendants are immune to any claim of more than $400,000 because “plaintiffs have essentially conceded that no claims for malice or gross negligence are alleged in the complaint and, therefore, partial dismissal is appropriate.”

In a second motion filed on June 16, county attorneys repeat their assertion that the school board can’t be sued for damages exceeding $400,000. This stems from the county’s self-insurance policy, which includes liability coverage of at least $400,000 for “each occurrence.”

Attorneys for the school board state that there is one occurrence because “plaintiffs allege only a single uninterrupted incident of sexual assault and only a single count of ordinary negligence for failure to adequately supervise the locker room.”

A similar lawsuit to the Seneca Valley case was filed in February on behalf of several victims of an October 2018 rape in the Damascus High School football locker room. The victims in that case were members of the junior varsity football team and said they were sodomized by four teammates with a broomstick.

The four players accused of the attack were charged with first-degree rape, attempted rape and conspiracy. Their pleas and sentences are not known because the cases were tried in juvenile court and were closed to the public.

The Damascus civil suit alleges that players and coaches, as well as the school board, knew of a longstanding culture of sexual assault in the locker rooms of county high schools.

The defendants in that case, which include both school officials and the school board, have denied knowing such a culture existed. The attorneys for the defendants in that case have said their clients are immune to claims of more than $400,000 in damages.

In the Damascus case, this month, the coaches and administrators were dismissed as individuals from the lawsuit. But they will still be involved in the case, plaintiffs’ attorney Tom DeGonia told Bethesda Beat.

DeGonia, who also represents the plaintiffs in the Seneca Valley suit, has said he thinks there will be a motion to have the individual school leaders dismissed as individuals in that case, too.

Discovery in the Seneca Valley case is scheduled to be completed in December, with a trial scheduled for April 2021.

Dan Schere can be reached at Daniel.schere@bethesdamagazine.com

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