24 P.3d 390 (Wash. 2001), 69456-7, Doe v. Gonzaga University

Docket Nº:69456-7.
Citation:24 P.3d 390, 143 Wn.2d 687
Opinion Judge:IRELAND
Party Name:John DOE, Petitioner, v. GONZAGA UNIVERSITY, a Washington nonprofit corporation, Julia M. Lynch, Roberta S. League, and Susan J. Kyle, Respondents.
Attorney:Randall & Danskin, Laurel Hobbs Siddoway, George M. Ahrend, David Groesbeck, Spokane, WA, for Petitioner., Wiggins Law Office, Charles Kenneth Wiggins, Kenneth Wendell Masters, Bainbridge Island, WA, for Respondent., Christine Gregoire, Attorney General, Warren Howard Fischer, Jr., Asst., Olympia...
Case Date:May 31, 2001
Court:Supreme Court of Washington

Page 390

24 P.3d 390 (Wash. 2001)

143 Wn.2d 687

John DOE, Petitioner,


GONZAGA UNIVERSITY, a Washington nonprofit corporation, Julia M. Lynch, Roberta S. League, and Susan J. Kyle, Respondents.

No. 69456-7.

Supreme Court of Washington, En Banc.

May 31, 2001.

        Argued Jan. 18, 2001.

        Reconsideration Denied Aug 10, 2001.

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[Copyrighted Material Omitted]

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       [143 Wn.2d 692] Randall & Danskin, Laurel Hobbs Siddoway, George M. Ahrend, David Groesbeck, Spokane, WA, for Petitioner.

        Wiggins Law Office, Charles Kenneth Wiggins, Kenneth Wendell Masters, Bainbridge Island, WA, for Respondent.

        Christine Gregoire, Attorney General, Warren Howard Fischer, Jr., Asst., Olympia, WA, for amicus curiae on behalf of Superintendent of Public Instruction.

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        Davis, Wright, Tremaine, Bruce Edward Humble Johnson, Eric Stahl, Diana C. Tate, Seattle, WA, for amicus curiae on behalf of Association of Washington Business.

        IRELAND, J.

       Petitioner John Doe sought review of a Court of Appeals' decision reversing the jury's award of [143 Wn.2d 693] damages (based on claims of defamation, negligence, invasion of privacy, violation of his rights under the Family Educational Rights and Privacy Act of 1974 (FERPA), and breach of contract) and remanding the case for retrial solely on the defamation claim.

        We hold that the jury was properly instructed and that there is substantial evidence to sustain the jury's verdict on the defamation, invasion of privacy, violation of FERPA, and breach of contract claims. Because Gonzaga had no duty to investigate allegations against John Doe, there is no cognizable claim for negligence. Therefore, the Court of Appeals' decision is affirmed in part and reversed in part. The case is remanded to reinstate the judgment on all claims except negligence, which is to be dismissed.


        The witnesses presented widely divergent accounts of the facts in this case.

        In late 1992, while John Doe was an elementary education student at Gonzaga University (Gonzaga), he had a sexually intimate relationship with Jane Doe, a student who was studying special education at Gonzaga. 1

        In October 1993, Roberta League (League), Gonzaga's teacher certification specialist, overheard student Julia Lynch (Lynch) talking with another student about Lynch's dissatisfaction with the way the school dealt with complaints of date rape. Lynch said that when she had been a resident assistant, she had observed Jane Doe in obvious physical pain, which Jane Doe said was the result of having sex with "John." Lynch was angry that no one from Gonzaga had bothered to find out what had happened.

       League recognized the name "John"; she knew John Doe was a student teacher in the education program at [143 Wn.2d 694] Gonzaga. Two days later, League told Dr. Susan Kyle (Kyle), Gonzaga's director of field experience for student teachers, what she had overheard. Kyle and League decided that they needed to investigate the situation. 2 League was concerned that the allegations she had overheard about John Doe might affect the dean's ability to submit an affidavit supporting John Doe's application for teacher certification. 3 two women met with Lynch on October 14, 1993. According to Lynch, Jane Doe told Lynch that John Doe had sexually assaulted her three times in late November or December 1992. Lynch also said that she accompanied Jane Doe to the student health center soon after the last assault, and the nurse concluded that Jane Doe had been date

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raped. 4 According to League and Kyle, Lynch said that Jane Doe claimed John Doe verbally coerced her into participating in "aberrant sexual behavior" with "other objects besides [143 Wn.2d 695] his penis," and urged Jane Doe to engage in multiple partner sex. 5 Clerk's Papers (CP) at 98, 195.

        At the conclusion of the meeting, League and Kyle asked Lynch to see if Jane Doe would speak with them about her relationship with John Doe. Lynch did, and Jane Doe became angry and told Lynch that she did not want to make a complaint. Lynch told Kyle and League of Jane Doe's response.

        League also contacted Adelle Nore, an investigator for the Office of the Superintendent of Public Instruction (OSPI), the state agency which certifies teachers. League and other Gonzaga personnel spoke with Nore by telephone numerous times about the allegations of John Doe's sexual misconduct, and League identified John Doe to Nore by name.

        Nore testified that she believed Gonzaga personnel needed to speak with both John Doe and Jane Doe about the allegations. However, Gonzaga personnel did not ask her for her advice and did not tell Nore that they had not talked to John Doe. It was Nore's understanding in her conversations with League and Kyle that the alleged victim was credible and prepared to make a statement.

        On October 28, 1993, Kyle met with Jane Doe, and told her about the date rape allegations. During the meeting, Jane Doe stated, "I guess I don't really know what rape is," and "I promised [John] I wouldn't tell." CP at 99. Jane Doe refused to make a formal statement.

       After leaving Kyle's office, Jane Doe talked with Professor William Sweeney (Sweeney), who later described her as near hysteria and weeping uncontrollably. Sweeney testified that Jane Doe told him that John Doe had sexually [143 Wn.2d 696] assaulted her on three occasions, each time more violent and abusive, and that she screamed and tried to get away. According to Sweeney, Jane Doe also said that John Doe repeatedly threatened her life, and that she did not believe the university could protect her from him. 6 January 1994, Jane Doe asked Janet Burcalow (Burcalow), chair of the department of teacher education, not to pursue the matter. But according to Burcalow, Jane Doe would not say that nothing happened, and Jane Doe admitted being afraid that John Doe would be angry if he found out she had talked about their relationship. Jane Doe testified that Burcalow told her that Burcalow already knew something bad had happened. Jane Doe told Burcalow these things were not true. Then Burcalow shook a finger at Jane Doe and asked her if she knew "where people who lie go." CP at 1886, 1925.

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        Cheryl Lepper, an instructor in the teacher education department, testified at trial that Jane Doe told her in the spring of 1993 that John Doe had forced Jane Doe to have sexual intercourse with him. According to Lepper, Jane Doe said John Doe had restrained her, forced her to have sex, and had then stalked her after she broke up with him.

        In February 1994, Dr. Corrine McGuigan (McGuigan), dean of the school of education, met with League, Kyle, Burcalow, and Sweeney. McGuigan obtained written summaries of the narratives they presented to her, and later concluded that there was sufficient evidence of a serious behavioral problem to preclude her from signing the moral character affidavit supporting John Doe's application for teacher certification. 7

       John Doe first learned about Gonzaga's investigation of [143 Wn.2d 697] him on March 4, 1994, the same day he made his final payment of fees and tuition to Gonzaga. John Doe received a call asking him to come to McGuigan's office. He was escorted to a private room and left to read a letter from McGuigan. The letter explained that in light of allegations of sexual assault, McGuigan would not give John Doe the moral character affidavit required to support his application for certification to teach. McGuigan refused to tell John Doe who had made the allegations against him. Testimony was also presented that when John Doe and his parents asked about their appeal rights, they were told there were none.

        By the time of trial, Jane Doe had married and was attending graduate school in another state. Because she was unavailable, John Doe presented her testimony through portions of a 1997 videotaped deposition, which were shown to the jury. In both the videotaped deposition and a 1995 deposition, Jane Doe denied that John Doe had sexually assaulted her. She denied that she had made many of the statements that Gonzaga personnel attributed to her. She testified that Lynch had "really blown things out of proportion," and that there were falsehoods in the declarations of Kyle, Burcalow, and Sweeney. Report of Proceedings (RP) at 877. Jane Doe denied speaking about personal matters to Lepper. She testified that she had tried to dissuade Kyle and Burcalow from pursuing the allegations. Jane Doe felt that Burcalow "wasn't interested in hearing anything other than what she already believed." CP at 1887. Jane Doe told McGuigan that Gonzaga personnel were "wrong in their assumptions" about what had happened in her relationship with John Doe. Id. She testified that some of the things that happened in her sexual relationship with John Doe made her uncomfortable.

       John Doe testified that he and Jane Doe had sexual intercourse on five occasions. He said he stopped when she seemed uncomfortable, and she never asked him to stop. John Doe presented the testimony of roommates that they never saw or heard any indication that Jane Doe was [143 Wn.2d 698] unwilling to engage in sexual intercourse. He presented the testimony of two former girl friends that John Doe never pressured them to engage in sexual activity, never tried to talk them into sexual activity uncomfortable to them, and never criticized them for not engaging in sex. John Doe testified that he found "a lot of lies" when he read the declarations of League, Kyle, Burcalow, and Sweeney. RP at 449. The declarations made him disgusted and angry. John Doe said that Gonzaga destroyed his career in teaching, his goals, and his dreams.


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