Judge denies motions to dismiss in New Hanover schools sex abuse civil case

A judge has denied multiple motions to dismiss made by the defendants in the civil action brought against New Hanover County Public Schools by 14 victims of former teacher Michael Kelly. The same judge has also directed some of the motions related to the SAFE Child Act to be heard by a three-judge panel in Wake County.

On June 29, the Fifth Circuit Judicial District’s Senior Resident Superior Court Judge Phyllis Gorham issued several rulings, most of which were denials of dismissal requests by defendants.

The defendants in the civil case include the New Hanover County Board of Education, Former Principal and Title IX Coordinator James Rickie “Rick” Holliday, former Superintendent Timothy Markley, and 10 other unnamed New Hanover County Public Schools (NHCPS) employees referred to as”Mike Roes 1 to 10.”

Counts brought by plaintiffs in the fourth amended complaint

Michael Kelly was first arrested in 2018 on four sex crime charges related to a student, but the case quickly escalated as more victims came forward culminating in over 60 charges against him spanning almost two decades and 14 victims.

Michael Kelly

Kelly pleaded guilty in June of 2019 to the majority of charges against him.

He was sentenced to a maximum of 24 years and three months for 57 consolidated charges against him and the judge added a maximum of an additional 7 years following the completion of that first sentence.

Gorham’s June 29 rulings denied the defendants’ motions in the following areas:

motion to dismiss on grounds that the Court lacked jurisdiction over the matter
motion to dismiss the breach of fiduciary duty claim
motion to dismiss the assault and battery claims
motion to dismiss the invasion of privacy claim
motion to dismiss the negligence per se claim:
motion to dismiss the claim that Plaintiff’s constitutional rights to an education were violated

The defendants’ motion, including a similar one by Holliday, to dismiss the claims revived by the Safe Child Act (section 4.2b) was also denied but Gorham ruled to send that specific issue to be decided by a Wake County three-judge panel. The case is stayed pending resolution from the three-judge panel on the matter.

In 2019, the General Assembly unanimously passed the SAFE Child Act, via Senate Bill 199, titled “Child Sex Abuse/Strengthen Laws.” The Act essentially expands the mandatory reporting of abuse of a child to any persons 18 years and older while updating statutes of limitations and other protections for children.

Section 4.2.(b), the section in question being sent to the three-judge panel, states “Effective from January 1, 2020, until December 31, 2021, this section revives any civil action for child sexual abuse otherwise time-barred under G.S. 1-52 as it existed immediately before the enactment of this act.”

The section expanding the mandatory reporting of abuse against children became effective Dec. 1, 2019, and per the statute, only applies to offenses committed on or after that date, however, the SAFE Act also altered the statute of limitations on certain crimes.

Per the Fact Sheet on the SAFE Act released by the N.C. Department of Justice, limitations on bringing a claim in a civil action were extended and a “person who was sexually abused under the age of 18 will have until the age of 28 to bring a civil action against the abuser.”

In other words, the statute created a revival window that allows certain plaintiffs to bring allegations even if the original statute of limitations expired.

Gorham also granted defendant Timothy Scott Markley’s motion to dismiss based on the claim being duplicative with the claim against the Board. This let Markley out of the suit as an individual defendant, but the judge ruled the allegations involving Markley will remain in the complaint. None of the plaintiffs were or have been dismissed.

The orders issued by Gorham:

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