practiced in this area quite a bit if you've read the cases that are cited by the court in the parties i've been a participant many of those cases in this case the judge dismissed the district court dismiss megan's complaint of hundred eighty three title nine and other claims based on the statue limitation rejected find it implausible that the statue of limitations could have been told what is clear is kentucky law control statue of limitation tolling and i don't think there's any question about that but it's further clear is it's been a long kentucky since at least the sector a case that evidence that of a duty to report a failure to do so may constitute concealment sufficient to toll the statute of limitations but instead of making the required report they undertook the words in the complaint to retaliate against the girl who made actually she didn't make a complaint they came to her they pulled her out of class a librarian in the assistant superintendent dunaway and said we've heard these rumors is there a sexual relationship going on in the young lady miss cole said yes there is she had never told anybody prior obviously this these are kids we're talking about she told them the basis of her knowledge the fact that she had seen them kissing the fact that she had seen explicit sex likely sexually explicit text messages and the fact that it is girls in children sometimes do she had listened in on phone point to raise and i was a point it's been raised in many cases i personally think that should be the case but in this particular case but i don't think there are i think that saying that the law really doesn't say anything on that issue in the sexual abuse of minors cases that's the way your theory would go because it it's open ended right in my theory in this case i want to be clear is my theory wants megan gillie found out about cole affidavit and i can i can walk you all through this happened if you're interested but essentially there was a nother student but who the parents were concerned one of whom was a kentucky state trooper was concerned that this coach is after megan gillies situation was concerned that this coach was sending her text message after text message and they were very concerned about their daughter and they hired me to investigate during my investigation we uncovered miss cole record i'm sorry no this is not in the record right but i  you might be assured my point is that once meghan found out about this cause affidavit in the fact that she told them about this and there was no report made that would trigger in my opinion the statue of limitations in this particular case that i don't know the exact dates but it is in the brief of when the a the report the statute runs the district court in my opinion made several errors one of the biggest errors i believe he made because he then relied upon it to say that she knew everything she needed to know at the time was the fact that megan was question during this investigation by the school that's not alleged in our complaint it is alleged in the vincent letter attached to the complaint in other words vincent writes back to them this is a you all talked about this me back in zero six zero five something like that you question me you question make it we don't ledge that megan was question in fact if this case is allowed to proceed she will testify that she was not question but if we look at the cases that are similar to this case i believe that the ma of a court of appeals in the fifth just or circuit court is the most apropos when you look at just the facts of the case in the manner case miss manere was questioned by the school when the sexual abuse was happening and she protected the teachers in the unpublished opinions are not binding the presidential it particularly when there is no law other all that is published and certainly the main are cases is we're talking about what is the kentucky law and that's the closest but another case that's very close and another case i'm confused with the district court about is the district court light on the turner case which is a supreme court case that involved two five year olds and whether there's a duty to report that behavior under six twenty in the court found in that case no there is not in the reasoning is in there but in that case it talks about the fact we're not dealing with a situation like commonwealth v allen where he was a teacher abusing a child so the case relied upon by the district court saying there is no duty here express lee says there is such a duty in a teacher or in our case a coach this mr vincent was her track coach and assistant basketball coach he was also  in a prior experience right think an elementary school teacher and counselor hers as well the alan case this is something i caught in the brief filed by mr jackson they say we don't know where the source of the information came from  the allen you'll see that in their brief in fact the fourth or third sentence of the case says that the reports came to the teachers from students the exact same situation we have here students told these teachers that this other teacher impression from your brief so that if what occurred worse that the investigation that these defendants performer's negligent or something like  again this was a motion to dismiss now in relation to the event just the court was wrong because the there was concealment and there was evidence of that yesterday and you you're limiting your argument to that concealment on human well and in the briefs today i am in the briefs their arguments made about how the school board is an arm of the state and therefore ninety three is applied i give you all the cases to say that's not true prine presidential cases but today i want to talk to you board of education at the district court had ruled that whether we could whether they're an arm of the state or not you know i'm not sure that he did i'm not sure that he got to that but there like in my brief i supply case after case where it says that in kentucky you have to use federal law to look at the issue in case separate cases school boards are not arms of the state for purpose in one thousand nine hundred eighty three liability and indeed this court has said that itself and then of is that is with as many as we have there's not a there's not a claiborne county going and going back to going back to the turn case i want to say again it reinforces the allen case in the allen case students brought to teachers the teachers only went to the principal did not make a report the kentucky supreme court and i think it was one nine hundred ninety eight so this is the law when these events occur towards this poor girl says that not only was there a mandatory duty for them to report it to the authorities under the reporting statute at the time these teachers and reporting to the principal wasn't enough but it was a crime for them not to have done so this is the status of the law i believe that when the turner case does not change that in any way in fact if you read the torah case they give a quote about this is not a situation like in commonwealth v l and where it was a teacher abusing a student in the turner case it was two five year olds and there was a little bit of investigation i also want to talk about this investigation a little bit again we're on a motion to dismiss but what we allege is here is what they did in the investigation they told the girl she was a liar and retaliated against her that reminds me of maine or the person who brought the complaint the mom the mom went to the superintendent said there's something wrong going on here inappropriate the superintendent said do you think it's sexual and the mom said yes my my husband i booked it in this case the student said there is sexual going on and here's the basis of it i've seen these texts listen to these phone calls i've seen them kissing but there was really there was a retaliation angle on that because in manere what right after right after the bridgeport was made by the mother they filed a social services complaint years for she was removed against the home same thing here they retaliated against the source of the information to chilling effect for anybody else to step forward further investigation top to the other kelly the only thing we have this  in the complaint is instead of investigating mr jackson and i delete that's in the letter from vincent as well but mr jackson was aware of this he did make the report either and certainly as assistant superintendent report to the superintendent does not own the principal but the best we could tell is that here's what they did they told the little girl that had the nerve to say this is going on to shut up she's a liar and they retaliate against her then they told benson go the mom  a letter saying she doesn't know anything about this but what's important is there is nothing in the complaint alleges and in fact if we're allowed to go forward that megan knew that call came forward that megan knew they went to the mother and that megan was ever questioned during during this an investigation i call morning your honor may i please the court my name is grant you know with half the trouble county board of education and marcia dunaway and the steward is here on behalf of former superintendent jackson and we've agreed to split our time with me taking the first ten minutes and mr taking the final five claims were dismissed as redundant by the district court that hasn't been addressed on appeal some state law claims were dismissed based on immunity by the district court that hasn't been appealed so there's a few aspects of the dish court's order that must be affirmed simply because no appeal was taken on those issues the trouble counted but were in the current superintendent marcia dunaway way that way ok in the court records it shows that i represent mr jackson in his official capacity and miss dunaway in her official capacity because that's the same as suing the agency and certainly as mr miller shared with the court this case did fairly quickly get down to the question of whether kentucky's tolling statute on fraudulent concealment served to told statute of limitations on the theory not of active interference with mis gillie but on a failure to speak where the law imposes a duty to speak that has been fairly well established as the as one of the methods by which fraudulent concealment claims the law on duty to speak if we're looking at failure to speak when alone has the duty to speak we have to get to the specific statutory language of where that duty is alleged to arise that's kentucky revised six to zero point zero three  any person who knows or has reasonable cause to believe that a child is dependent abused or neglected shall cause an oral or written report to be made the turner court mr miller really wants that to be ignored he practiced the minor case and it was very successful in that case duty wasn't even contested in that case the board's county board of education is designee witness simply testified that former superintendent had a duty to report what was reported to him by the mother  i believe if turner had been decided prior to maner that analysis would be different because the turner court specifically said there is no duty under the statute to report mere suspicion mere allegation mere rumor they said you only have to report where there is knowledge or reason cause to believe or says this young lady called was that her name she will yes or she said she topped him with what she'd seen don't you think they should have reported it or at least investigated pardon well there's no there is no duty to investigate further certainly if we were looking at a timely negligence claim then perhaps the question of whether the investigation was sufficient would be something that  at the very least had to be addressed by the court but since there was no duty to conduct any particular investigation whether we think the investigation was adequate doesn't contribute to the tolling argument that's before the court what if the statutory duty is to report if there is reasonable suspicion to believe real real cost of a reasonable cause to believe sorry how do we determine what is reasonable cause if there really adopt kind of that federal court federal law standard of of what the official knew based on objective determination of whether they had facts available to them from which a reasonable belief could be formed the turner case rejects the notion that even the victim telling somebody that they have been subjected to this conduct would create reasonable cause to believe that it takes something more than the report itself to create reasonable cause to believe and in the turner case even an investigation that was conducted questioning that was conducted the court said that still didn't trigger reasonable cause to believe what would trigger that i could jesting now or just somebody saying this happened they say well we don't believe  go if we were looking solely at a timely negligent supervision complaint i believe the answer to that is no they could not ignore it but if we're looking after the fact as to whether their conduct constituted fraudulent concealment you have to look at whether they can in fact develop reasonable cause to believe whether they should have is not the test whether they should have done more and tried to develop reasonable cause to believe it's not the test under any of the case law that  sector case the diocese in fact had a volume of documentation and had expressed internally their actual belief and actual knowledge that he had victimized multiple students transferred him out of the state and then when he came back into the state they still took no action even though they exchanged communications saying we don't feel his pedophilia has been addressed so there's actual knowledge and their own statement show that they believed that he had engaged in th of those private forts that's correct in this case there's no evidence of any prior victim of mr vinson there's no evidence at all of any prior allegation against mr vinson so there's nothing in their files that would equate to the sector case they should have sure they should have singular allegation as to one student that singular rumor that is that doesn't rate rush to the level of the turner courts as mere suspicion mere allegation doesn't rush the level of reasonable cause to believe you said earlier did you say that what the turner case held is that even where the victim came to the teacher and said this is being done to me that that alone does not create reasonable cause to believe that allen case commonwealth versus allen has been relied on extensively but what's very significant in that case is it's posture as it was on appeal it was on appeal from the dismissal of the indictment on the argument that the defendants had discharged their duty duty was presumed they were asking the court to dismiss a dot indictment on the are going to discharge so all the court analyze the only part of the statute that was specifically analyzed by the supreme court in allen was whether the discharge provision in the good faith immunity provision applied not whether the duty had in fact arisen under the facts that's why we have very sparse record of what came to them what level of information came to them before they reported to their principal we don't know if under the turner case they in fact had a duty to report anything  just turner is more recent and turner did not rely on mainers notion of course main was unpublished returns more recent and it's the supreme court they did not rely on minors notion that a report from a mom that she suspected that something was going on with her daughter would have triggered a duty superintendent to report to law enforcement the court and turner specifically said even if the victim reports to the teacher that this conduct is happening to them that doesn't trigger a duty to report i believe turner had been decided first the sentence in maner that says superintendent guy potts had a duty to report the mother's suspicion to law enforcement could not have been written because the term course the there is no duty to report mere suspicion or said her real young ok it had one kid against another but as the identical statutory language as to what constitutes abuse and what constitutes reasonable cause to believe the underlying facts don't but here we're not as i understand this case at least we're not just looking at what was the duty and was it ignored we're looking at the question of did anything happen here to conceal what did go on so that we can figure out whether this is time and you haven't really talked about that yes your honor i've ever got off the first page my notes based on your question so we have not gotten down to be grateful if you would because i'm trying to figure out you know i think the duty is one thing but the question of whether there was concealment of a failure even to do what they were required to do is a separate and threshold question here our argument is simply that the scant information came to them never created a duty there was nothing to be concealed there if the duties never triggered there's there is not a failure to speak and that's the whole that's part and parcel that's everything of their tolling argument there's simply is no other evidence of any notion by a supernova done away by former superhit jackson of active concealment of the fact this rumor had come to them and they made an inquiry into it there's there's nothing in the enters a case for example which is an unpublished u s district court case out of kentucky it said there had not been any prior complaints there were no records on this that could have been destroyed so there's no allegation of affirmative steps to conceal information known to the agency and that's part of the reason the court in andersen said that while a failure to report may be evidence of concealment there has to be more there has to be some additional affirmative steps made to hide the plaintiff's cause of action from from the plaintiff we do certainly argue have preserved in the briefs very extensively the definition of abuse or neglect the child did not in this matter she was not subjected to this con by parent the guardian or anybody exercising custodial control or supervision over her and it was not a situation where the risk of abuse was created by her parent guardian or person exercising custodial control the affidavit says she drove to his house it doesn't say that he discarded from school with her it doesn't say he took her home after practice game she could get went to his house so there's no allegation that mr vincent was exercising custodial control or supervision over the stat over miss gilly sexual abuse as defined in the statute would it not to have applied to her brother tom after she reached her sixteenth birthday and the only evidence that even subject to being derived from a call affidavit is that alleged conversation with mr dunn away happened after reagan sixteenth birthday kentucky has the age of consent of sixteen and at the time a relationship between a sixteen year old and an adult would not have been on lawful certainly here make sure to get this straight you're saying that the teacher student relationship problem when she became sixteen that because there's position of special trust or authority provisions were added to the statute prior to two thousand and six there was no definitional language in the text penal code or the child abuse statute that would have related to somebody who merely met the victim as a result of being a teacher right thank similar to that by mr chenowith although i would point out some additional facts that the district court pointed out in first of all this is on a mission to dismiss the court's review is limited to the record what's in the record is with the district court's review the district court review on a motion to dismiss review so pleadings the exhibits appended to it to determine from that and they drove in the district court must draw all the reasonable  ences giving the benefit of the doubt to the plaintiffs giving the the strongest reading to the plaintive has the plaintiffs brought forth has the plaintiff the due sufficient facts not not conclusions not speculation not conjecture sufficient facts to toe the statute of limitations and judge batchelder i think raised an excellent point on the active concealment because that is the key to the of the statute of limitations in this case and that is where the district court did not go and in fact the district court's opinion when you read it it is well written it follows the same logic rationale of the six circuit court of appeals decision two thousand and twelve and the guy versus lexington fayette county urban government i always say that wrong but basically in the guy case it also follows the same rationale the same analysis of the kentucky case laws since maine or as mr chenowith stated in andersen there are basically two components that the court will look at one is did the plaintiff shows sufficient facts to show active affirmative concealment concealment cannot be presumed it cannot be speculated or based on conjecture it has to be there has to be active permit evidence of that and here's what the district court had the district court head the lawyer call an affidavit in the district court's opinion noted very correctly the colley affidavit has nothing to do with superintendent superintend to jackson he can't do that under kentucky law kentucky law does not allow him to impute that knowledge so then the only other factual basis that was appended to the amend complaint was a letter from mr vincent that was written to marcia dunn away and in that letter mr de beenz it reports that he was quote that he was questioned about a relationship with megan gillie he doesn't reference the call if a day of it but that he was question about a relationship with with miss gilly and within a meeting in which jackson was there that vincent tonight that rumor and he calls it a rumor that he states and that megan gilly also denied that rumor so and so that all that jackson head based upon that vincent letter in all that's been a deuced is knowledge of an unconfirmed unsubstantiated rumor and it is is mr chenowith has said in the turner case that does not trigger a legal duty to report so then confronted with these types of records these types of rumors that a teacher must make a reasonable inquiry into the facts weigh the credibility of the student and use of judgment experience as a teacher to reach a decision as to whether or not there's reasonable cause to believe sexual abuse that occurred in fact the turner case the turner court equates that to its it says quote it's similar to a judicial decision as to whether or not there is probable cause to support in this sort of proposition because the reality is if schools if teachers if superintendents were reporting to law enforcement or the cabinet any rumor that comes back which which is what the appellant contends is the duty that is going to tie up significantly the time of law enforcement in the camp that it's ties up significantly the time of the administrators in the district suddenly we're not running our districts we're brining down rumors that's not what the statute requires and report that and that's not what the statute requires or envisioned so there's no legal duty then the question is is w our act of concealment and i see my time's running out but the second could the third component that's just as important is did the plaintiff exercise reasonable diligence in discovering her cause of action in taking steps to discover her cause of action in filing in a timely action here there's no permit what she did other than she sat for seven years and let the statute of limitations run and i do want to quote back to the interesting case and conclude been andersen the court of appeals with pace with a very similar situation and they interesting case held that the pla to did not satisfy her duty of due diligence in stated that even if there had been violation of kara's six twenty or thirty that a lead even there was mandatory reporting they didn't report they said even if we even conceded that that alone does not trigger equitable tolling under kentucky law because a point if he has a burden showing they exercise due diligence in investigating and bringing their claim and then the court stated quote given the bearing nature of the injuries alleged by the plaintiffs plaintiffs were sufficiently aware of the pack such should have around suspicion the claims against the dependents and they're talking about a superintendent here at the time of their injuries  so far as plaintiffs were injured while attending fayette county public schools the onus was placed on them to quote exercise reasonable care and diligence to discover whether there was a buyable claim arising from those interests i had a few issues you raised a question your honor about the concealment and i forgot to get to that critical yes it is it is in and we need to be clear making gillies claim is not i was sexually abused no they didn't report and they violated the statute that that is not a claim that's a issue of law as to whether the statute limitations are told her claims as i mentioned earlier one nine hundred eighty three and title nine both of which require her to prove one hundred nine hundred eighty three either active or construct i'm sorry either actual or constructive knowledge or title nine actual knowledge and then both claims require them to her to prove deliberate indifference there are two of the sexual abuse she knew she was sexually abused actually in a victim's mentality then they don't realize it's abuse until years later but we won't get into that here but her claims are that they knew about it and they were deliberately indifferent to it but you're saying that she did discover if she found out about the code that's correct and there is no what was was megan gillie supposed to ask every single participant in school while she was there hey did you know about me and  mr vincent's in did you have a question by the school about that is that the due diligence the court requires there is certainly no case law on that issue but i want to make clear the claim is not simply i was sexually abused by mr benson when i was it's cool that the claim is the school those claims were concealed from her by their duty to report in philly to do so meant is that by not reporting it they can seal it from her or that they knew about it direct they knew about it they were deliberately indifferent to it and part of deliberate indifference least i argue to a jury certainly you were supposed to make the report and you did i do want to move on a couple things i see my time is running slow this issue about it's not sexual abuse if you're over sixteen the statutory language under the three title nine he's going to the penal code the definitional section for six twenty three oh i write about my brief i want to mention that and the idea of custodian the custodial relationship i think you would ask the question about that in williams to kentucky department of education kentucky supreme court case two thousand and three before these events were while these events i think and they start to be abused which was fourteen's on them i've been two thousand and three quote the basic premise for this duty is that a child is compelled to attend school so that the protected custody of teachers is mandatorily substituted for that of the parent that issues decided already so i want to get to that  and i think that's all and once again thank you all very much for time i know i want to win my time i really appreciate it so this may be thank you counsel the case will be submitted their being you know for their case