Parents told a Coconut Creek preschool they felt uncomfortable about the music teacher tickling their daughter, but the school wasn’t concerned enough to add an adult to the classroom, the parents said.
Three months later, the Discovery Preschool Center teacher was arrested for molesting at least three preschool girls.
It was up to a Broward Circuit Court jury last month to decide whether the preschool’s Massachusetts-based parent company, Bright Horizons Family Solutions, should be held responsible for the actions of its former teacher, Olakunle Omomowo.
The jury rejected a negligence claim against Bright Horizons but found the company vicariously liable for $3 million in damages caused to a girl who was 4 years old when she was molested in 2013.
Her parents’ attorneys’ legal strategy hinged on the idea of grooming behavior, which pedophiles use to gain the trust of a child and other adults around them.
A child molester starts by touching kids in a nonsexual way, then pushes limits and tests reactions before committing sexual abuse, said the family’s lead trial attorney Jeff Herman of Herman Law in Boca Raton.
Bright Horizons’ policies allowed Omowowo, known as “Mr. Ola,” to tickle kids, put them on his lap and bounce them up and down, Herman said. Since Omowowo abused children while doing something he was authorized to do, the school should be held vicariously liable, the family’s lawyers argued.
Bright Horizon lawyers Jason Trauth, Mark Hendricks and Gabriel Costa of Lydecker Diaz in Miami declined to comment Wednesday.
The company argued not all touching is grooming behavior, Herman said.
Other Florida cases did not support a finding of vicarious liability in this case, the defense attorneys said. Vicarious liability was usually assigned to medical personnel who were authorized to see patients undressed or to touch their genitals in a nonsexual manner and then abused the patient. What Omowowo did was outside his duties as an employee, they argued.
Standard Of Care
During the nine-day trial, the plaintiffs’ medical expert testified the girl had post-traumatic stress disorder from the abuse.
Charol Shakeshaft, an educational researcher who has studied sexual abuse for the U.S. Department of Education, reviewed Bright Horizons’ policies.
“Shakeshaft testified that the policies and procedures of allowing the type of touching they do falls below the standard of care and also that the lack of investigation that the school engaged in following the notice of tickling fell below the standard of care,” Herman said.
Perhaps the most compelling witness was the girl herself, he said. The family made the difficult decision to allow the girl, now 7, to speak about her abuse because it would likely help her heal.
The court made accommodations to make her more comfortable with the process — she was allowed to meet the judge and the bailiff ahead of time and choose where Herman would stand while he asked her questions. Those choices might seem small and insignificant, but they tend to empower the child, he said.
“Her father said to me after she testified, ‘This was the worst day of my life but also in some ways the best because I’m so proud of her that she got up there and told her story. She’s a survivor,’ ” Herman said.
In the end, the jury awarded $2 million for the girl’s pain and suffering and $1 million for treatment she’ll need after she turns 18.
After Broward Circuit Judge Carol-Lisa Phillips entered final judgment March 24, the parties reached a settlement for a different amount. Herman said he could not discuss the details or reasons behind the agreement.
“It was resolved to my client’s satisfaction, to each party’s mutual satisfaction,” he said.
Just before trial, Bright Horizons settled with another victim’s family, and the third victim’s settlement is awaiting court approval, Herman said.
Omowowo’s criminal trial was scheduled for this month, but his criminal defense lawyers were granted a motion to recuse the judge. The former teacher is awaiting a new trial date on four counts of lewd and lascivious molestation.
Herman said he believed a $50 million award would not have been out of line for his client, but he was satisfied with the resolution of the case.
“I want to acknowledge these brave families for coming forward because it is difficult to do,” he said. “For these kids to be able to give statements and stand up for themselves is difficult, and it’s important.”
Herman was assisted at trial by Daniel Ellis and Arick Fudali of his firm.
Case: Jane Doe et al v. Bright Horizons Children’s Centers
Case no.: CACE-13-016889
Description: Sexual abuse
Filing date: July 9, 2013
Verdict date: March 17, 2016
Judge: Broward Circuit Judge Carol-Lisa Phillips
Plaintiffs attorneys: Jeff Herman, Daniel Ellis and Arick Fudali, Herman Law, Boca Raton
Defense attorneys: Jason Trauth, Mark Hendricks and Gabriel Costa, Lydecker Diaz, Miami
Verdict amount: $3 million