By Sam Colt
Lawyers representing Stephen Zingarelli, a former Kenyon student suing the College for negligence, breach of contract and other alleged injustices, have motioned the Knox County Court of Common Pleas for leave to respond to a newly raised defense by the College, according to recently filed court documents.
Additionally, the defendant in the case who accused Zingarelli of sexual assault last year, a charge of which he was acquitted, filed an answer to the complaint Monday, including a counterclaim alleging two counts of battery, two counts of assault and one count of intentional infliction of emotional distress.
In a memorandum filed last month, the College claimed Ellen Kaufman ’13, a former sexual misconduct advisor (SMA), was not liable for her actions relating to the student who accused Zingarelli of sexual assault last year. The memo asserts Kaufman acted as a volunteer for the College while serving as an SMA and thus held no liability under the Volunteer Protection Act (VPA), a federal law designed to protect nonprofits and government agencies from civil liability.
“Under this act, if a volunteer of a nonprofit organization acts on behalf of the organization and, as a result, causes some harm … the volunteer cannot be held liable,” the memo reads. The VPA makes an exception for willful, criminal or gross negligence, but the College claims Kaufman did not act in this way.
Although the memo focuses on Kaufman, it also represents an attempt by the College to avoid a lengthy and expensive court trial.
“Because the Plaintiff has failed to state a claim for negligence as to Ms. Kaufman, the vicarious liability claim and negligent supervision claim against Kenyon must also be dismissed,” the memo asserts.
If successful, the memo would exonerate Kaufman from any fault and diminish Zingarelli’s claim against the College.
The motion for leave responds to the College’s VPA defense, which would be considered filled if the motion is granted.
“A review of the Complaint reveals that Kaufman’s conduct was, at a minimum, reckless misconduct or a conscious flagrant indifference to Stephen’s rights,” read the brief filed Monday.
The brief also claims the VPA would not disclaim the College from any liability, whether or not Kaufman acted criminally.
“Even if this Court determines that Kaufman is entitled to immunity arising from her status as a volunteer … such immunity has no effect on Kenyon’s liability for the harm caused by Kaufman as its agent,” read the brief.
The brief’s language suggests Kaufman may be granted immunity under the VPA. Lawyers for Zingarelli argue Kaufman’s actions were “reckless misconduct,” an exception to the law, but later write of Kenyon’s liability “even if Kaufman is immune.”
As Kenyon and Zingarelli wait for a decision from Judge Otho Eyster, who also presided over the earlier sexual assault trial, litigation against Zingarelli’s accuser has advanced.
The counterclaim Zingarelli’s accuser filed reiterates allegations leveled against Zingarelli last year, when he was charged with rape and gross sexual imposition. Zingarelli was acquitted of both charges.
Zingarelli’s accuser directly addresses an allegation of the criminal complaint: that she and Kaufman spoiled evidence “designed to disrupt Stephen’s defense against [her] false accusations.”
But his accuser flatly denies the allegation. “[The] Defendant did not commit said tort and at the time she deleted the contact information regarding Plaintiff from her phone, and deleted some of the text messages … no litigation was either contemplated or pending,” read the answer and counterclaim.
Although he cannot be retried in criminal court, the civil suit raises the possibility of compensatory and punitive damages against Zingarelli, which are sought in excess of $25,000. Both the original complaint and the counterclaim demand a trial by jury.