NOT TO BE PUBLISHED

OPINION

COMBS, JUDGE.

S.G., on behalf of S.B.J., a child, appeals from the order of the Washington Circuit Court which granted summary judgment to the appellees, Care Academy and members of its staff. After reviewing the record and the law, we affirm in part, vacate in part, and remand.

The basic facts are not disputed. In December 2006, S.B.J. was a student at Care Academy, a school for students with disciplinary and behavioral problems. Most of its students were residential, having been placed at the Academy by court order in juvenile proceedings. Care Academy had a contract with the Kentucky Department of Juvenile Justice (DJJ) to serve as a facility as an alternative to detention. However, S.B.J. was not a resident; nor did he become a student as a result of any juvenile court proceedings. He had been a student in the Washington County School District and had been referred to Care Academy by his principal in order to facilitate special educational needs. At Care Academy, S.B.J. was assigned to a group of students called the "Ranger group," which consisted of approximately 10-12 boys who apparently were residents of the facility.

On December 14, 2006, the Care Academy staff searched the Ranger group for contraband. The parties dispute the reason for the search and what kind of contraband was involved. The record provided to the court is incomplete, and it offers no evidence to support either contention. S.B.J. was one of the students subjected to the search. Male staff members took three male students together at the same time into a separate area and had the boys remove their clothing except for their underwear. They then had the boys line up facing a wall with their elbows touching and made them pull down their underwear. The staff members then visually observed the anus of each boy after asking each one to cough in order to facilitate visual inspection. They did not touch the boys.

The parties dispute whether the search was voluntary. S.B.J. contends that he was forcibly subjected to the search. However, Care Academy claims that the boys were given the chance to not participate and that one boy walked away without being searched.

S.B.J. returned to Care Academy the next day. However, he voluntarily withdrew after the holiday break. In 2008, S.G. filed this lawsuit in Washington Circuit Court. Care Academy, the DJJ, Washington County, and several employees of Care Academy were named as defendants. In 2009, the defendants removed the suit to federal court. The Western District of Kentucky dismissed the federal claims and remanded the state tort claims back to Washington Circuit Court on March 31, 2010.

By 2010, the only defendants remaining in the lawsuit were Care Academy and three of its employees1 — Katherine Strother, Douglas Thacker, and Al Doig. The circuit court granted summary judgment in favor of the defendants in November 2010. This appeal follows.

Summary judgment is a device utilized by the courts to expedite litigation. Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006). It is a "delicate matter" because it "takes the case away from the trier of fact before the evidence is actually heard." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). In Kentucky, the movant must prove that no genuine issue of material fact exists; the movant "should not succeed unless his right to judgment is shown with such clarity that there is no room left for controversy." Id.

The trial court must assess the evidence in favor of the non-moving party. City of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). In order to overcome a motion for summary judgment, the non-moving party must present "at least some affirmative evidence showing the existence of a genuine issue of material fact." Id. See also Kentucky Rule[s] of Civil Procedure (CR) 56.03. On appeal, our standard of review is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Because issues of fact are not involved in summary judgments, our review is de novo. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.2d 188, 189 (Ky. App. 2006).

S.G.'s first argument is that summary judgment was improperly entered because of the presence of issues of fact relating to the claims of negligent training/supervision, negligence, and gross negligence. We agree.

In order to prove negligence, a plaintiff must satisfy three elements: 1) that a defendant owed a duty to the plaintiff; 2) that the defendant breached that duty; and 3) that injury resulted from the breach of that duty. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). Injury in the tortious context is determined: (1) by whether there was actual injury or harm and (2) by whether legal causation linked the breach and the injury. Id. at 89.

Duty is a question of law. Id. The trial court determined that S.G. did not demonstrate that Care Academy had breached any duty that it owed S.B.J. by merely conducting a strip search. S.G., however, argues that the search was not the breach of duty; rather, it was the unreasonable manner of the performance of the strip search that constituted a breach. Whether a breach occurred is a question for the jury. Id.

In its order, the trial court stated only that "S.[G.] has failed to establish a violation of any duty owed [S.B.J.] by Care Academy [and its employees,]. . . and the mere fact that a strip search occurred is not evidence of a violation of any duty owed SBJ." Thus, its finding was conclusory and lacked any discussion of the legal analysis underlying its decision.

S.G. cites to several cases which apply Fourth Amendment principles to determining whether strip searches in schools are performed appropriately. However, we agree with Care Academy that those cases are not applicable here. All the cases cited pertain to public schools, which are state actors. Care Academy is private, and private schools are not held to the same standards and rules as public schools. Centre College v. Trzop, 127 S.W.3d 562, 567 (Ky. 2003). Nonetheless, we disagree with Care Academy that it did not owe any duty of protection to S.B.J.

Kentucky's General Assembly has decreed that "every student should have access to a safe, secure, and orderly school[.]" Kentucky Revised Statute[s] (KRS) 158.440. It does not distinguish between public and private schools. Our highest court has stated that "the protective custody of teachers is mandatorily substituted for that of the parent." Yanero v. Davis, 65 S.W.3d 510, 529 (Ky. 2001). (Emphasis added). In an unpublished case, this court has discussed the duty of care of children as it applies to a private school:

Cooper v. Unthank, 2009 WL 3320924 at *3 (Oct. 16, 2009)(2007-CA-002576-MR, 2007-CA-002596-MR).

In a case concerning the rules of a private college, our Supreme Court has declared that:

Gott v. Berea College, 161 S.W. 204, 206 (Ky. 1913). See also Kentucky Military Inst. v. Bramblet, 164 S.W. 808, 809 (Ky. 1914). Thus, it is impossible for us not to conclude that Care Academy owed S.B.J. the duty to protect him from unnecessary force, embarrassment, and indignity. Such a duty arises by the very nature of entrustment of children by their parents to the school as Kentucky law has recognized.

S.G. does not claim that Care Academy's policy pertaining to searching its students is unlawful per se or contrary to public policy. Instead, she argues that the school did not follow its own policy by conducting an unreasonable search.

Care Academy's contract with the DJJ necessarily subjected it to the DJJ policies and procedures. DJJ 325.1 outlines the requirements of searches. It defines a strip search as "a search of an individual's naked body for weapons and contraband." DJJ 325.1(III)(D). Strip searches are authorized if there is reasonable suspicion that a student is in possession of contraband. The guidelines as to privacy concerns are stated in mandatory language. Strip searches "shall be conducted in a private area . . . and shall be performed with consideration for the youth's dignity and feelings. . . . Strip Search of a youth shall be approved in advance by the Superintendent." DJJ 325.1(IV)(C)(2). (Emphases added). Furthermore, Care Academy's own security search policy mandates that any time a child's person (not necessarily unclothed) is searched, it must be conducted in "complete privacy" and in a way that avoids "unnecessary force, embarrassment or indignity to the [child]."

Thus, the court erred as a matter of law in not finding that a duty of care existed. Whether a breach of that duty occurred is a question for a jury, and it was error for the trial court to make that finding sua sponte. Pathways, supra. It is within the sole purview of a jury to determine whether the search of three boys collectively complied with the procedures that mandate privacy and whether the circumstances involved in the search constituted a breach of Care Academy's duty to protect its students.

Neither party has presented this point in its briefs. The briefs as well as the record offer minimal facts and cite very little legal authority. Ordinarily, we would not examine an issue that has not been briefed.

Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991). (Emphases added). No subject can be more fundamental and compelling than the possible abuse of a child. This issue is clearly one to be decided by a jury because numerous questions of material fact are involved. Since summary judgment was inappropriate, we vacate and remand on its entry on the issue of negligence.

S.G.'s next argument is that summary judgment was erroneous as to the claim of the false imprisonment. She contends that the court failed to recognize a genuine issue of material fact and that it did not consider the motion for summary judgment in a light most favorable to her as the non-moving party.

The tort of false imprisonment is "any deprivation of the liberty of one person by another or detention for however short a time without such person's consent and against his will, whether done by actual violence, threats or otherwise." Banks v. Fritsch, 39 S.W.3d 474, 479 (Ky. App. 2001). (Internal citations omitted). In order for such a claim to be successful, a plaintiff must prove that the restraint had been "wrongful, improper, or without a claim of reasonable justification, authority, or privilege." Id.

The trial court granted the motion for summary judgment on the false imprisonment claim because there was no evidence that Care Academy used force or that it threatened force in order to perform the search of S.B.J. However, S.G. argues that whether a threat occurred presents a genuine issue of material fact precluding summary judgment.

S.B.J. testified in his deposition that Care Academy staff members told him that if he did not allow them to strip search him, he would "have to go to court." S.G. suggests that this statement constituted a threat of force and that it was an issue of fact for a jury. We disagree.

This court has held that words that do not threaten one's person or property are not a restraint within the context of the definition of false imprisonment. Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 278 (Ky. App. 1981). The mere possibility of going to court (distasteful or stressful as it may be) is not the sort of threat that restrains a person within the scope of this tort. Furthermore, the staff of Care Academy was in a position of authority over S.B.J. and was justified in general in conducting a search for contraband. Even when examined in S.G.'s favor, the evidence does not indicate that the court committed error as to the claim of false imprisonment.

The next argument that S.G. makes is that the trial court erred by granting summary judgment on the assault charge. "An assault is an unlawful offer of corporeal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of immediate peril." Smith v. Gowdy, 244 S.W. 678, 679 (Ky. 1922).

The trial court properly found that there was no evidence that Care Academy had forcefully caused S.B.J. to fear immediate peril. S.G. argues that S.B.J.'s affidavit stating that he did fear immediate peril was adequate to create a genuine issue of material fact. However, our Supreme Court has stated that in order to overcome a motion for summary judgment, a party must present significant evidence beyond his own assertions. Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001). S.G. has presented nothing beyond S.B.J.'s affidavit. Therefore, the trial court did not err.

S.G.'s final argument is that the trial court incorrectly dismissed the claim of intentional infliction of emotional distress (IIED). The trial court's reasoning was two-fold: (1) that the claim was duplicative of the other claims and (2) that, as a matter of law, Care Academy's actions did not rise to the elevated threshold of egregious behavior necessary for recovery under an IIED claim.

We agree with the trial court that recovery for IIED was not available for S.G. In cases of assault and in negligence claims, recovery for emotional distress is already included. Thus, claims of IIED are redundant and may not survive. Banks v. Fritsch, 39 S.W.3d at 481; Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky. App. 1993).

Additionally, S.G. has not met the elements of IIED. In order for conduct to satisfy the elements of this tort, it must be intentional and reckless. Second, it must be outrageous and offensive to generally accepted standards of decency and morality. The conduct must be shown to cause emotional distress that is severe. Craft v. Rice, 671 S.W.2d 247, 249 (Ky. 1984). Whether the conduct "can reasonably be regarded to be so extreme and outrageous as to permit recovery" is a question of law for the court. Goebel v. Arnett, 259 S.W.3d 489, 493 (Ky. App. 2007) (citing Whittington v. Whittington, 766 S.W.2d 73 (Ky. App. 1989)).

S.G. does not accuse Care Academy and its employees of conduct that rises to the level described in these cases. It was not outrageous for the staff of a facility for troubled children to take security measures. Procedures were in place to ensure that strip searches be as dignified and structured as possible. Furthermore, the record suggests that although S.B.J. suffered embarrassment, there was no evidence of severe emotional distress as a result of the search. Therefore, we affirm the trial court in its dismissal of the IIED claim.

To summarize, we vacate and remand on the issue of whether Care Academy behaved negligently. We affirm the summary judgment granted on the claims of assault, false imprisonment, and IIED.

ALL CONCUR.