Christensen v. Royal School Dist. No. 160, 75214-1.

• Decision Date: 08 December 2005
• Docket Number: No. 75214-1.,75214-1.
• Citation: 124 P.3d 283,156 Wn.2d 62
• Court: Washington Supreme Court
• Parties: Certification from the United States District Court for the Eastern District of Washington in Leslie CHRISTENSEN, a minor; Gary Christensen and Kim Christensen, father and mother, individually and on behalf of their minor child, Plaintiffs, v. ROYAL SCHOOL DISTRICT NO. 160, a political subdivision; and Preston "Kent" Andersen, Defendants.

124 P.3d 283

156 Wn.2d 62

Certification from the United States District Court for the Eastern District of Washington in Leslie CHRISTENSEN, a minor; Gary Christensen and Kim Christensen, father and mother, individually and on behalf of their minor child, Plaintiffs, v. ROYAL SCHOOL DISTRICT NO. 160, a political subdivision; and Preston "Kent" Andersen, Defendants.

No. 75214-1.

Supreme Court of Washington, En Banc.

Argued September 23, 2004.

Decided December 8, 2005.

Robert Crotty, Burke Jackowich, Tami Wilcox, Kelly E. Konkright, Spokane, for Plaintiff.

David Soderland, Attorney at Law, Seattle, Michael McFarland, Attorney at Law, Spokane, Jennifer D. Homer, Gerald John Moberg, Brian A. Christensen, Jerry Moberg & Associates, Ephrata, for Defendant.

Rebecca Jane Roe, Seattle, Catherine Carroll, Olympia, for Amicus Curiae (Northwest Women's Law Center), for Amicus Curiae (Washington Coalition of Sexual Assault Programs).

Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae (Washington State Trial Lawyers Association Foundation).

ALEXANDER, C.J.

¶ 1 The United States District Court for the Eastern District of Washington has certified the following question to this court:

May a 13 year old victim of sexual abuse by her teacher on school premises, who brings a negligence action against the school district and her principal for failure to supervise or for negligent hiring of the teacher, have contributory fault assessed against her under the Washington Tort Reform Act for her participation in the relationship?

Order of Certification to the Washington Supreme Court (Certification Order) at 1. We answer "no" to the question, concluding that, as a matter of law, a child under the age of 16 may not have contributory fault assessed against her for her participation in a relationship such as that posed in the question. This is because she lacks the capacity to consent and is under no legal duty to protect herself from the sexual abuse.

I

¶ 2 The stipulated facts, as set forth in the Certification Order, indicate that Leslie Christensen was born on July 7, 1987. She is the daughter of Gary and Kim Christensen. In early 2001, Leslie was 13 years of age and a student in the eighth grade at the Royal School District's Royal Middle School. During that school year, the District employed 26-year-old Steven Diaz as a teacher at Royal Middle School. The principal of Royal Middle School at that time was Preston Andersen.

¶ 3 On February 12, 13, 22, and March 30, 2001, Diaz engaged in sexual activity with Leslie, who was one of his students. This activity occurred in Diaz's classroom. According to Diaz, Leslie voluntarily participated in a relationship with him and in the aforementioned activity.

¶ 4 Leslie and her parents brought suit against Diaz, the Royal School District (the District), and Principal Andersen in the United States District Court for the Eastern District of Washington. In their complaint, they claimed that Diaz sexually abused Leslie. Damages were also sought against the District and Andersen based on the allegation that the District and its principal, Andersen, were negligent in hiring and supervising Diaz.

¶ 5 In a responsive pleading, the District and Andersen asserted an affirmative defense that Leslie's voluntary participation in the sexual relationship with Diaz constituted contributory fault under the tort reform act, chapter 4.22 RCW. Leslie moved for partial summary judgment on this issue, seeking to strike the affirmative defense. The trial court deferred ruling on the motion pending an answer from this court to the certified question set forth above.

II

¶ 6 The certified question presents an issue of first impression. The parties assert numerous arguments in support of the answer they favor to the certified question. Because we answer the question on narrow grounds, we need not address all of their arguments.

¶ 7 The Washington Legislature enacted the tort reform act of 1981 in order to "create a fairer and more equitable distribution of liability among parties at fault." LAWS OF 1981, ch. 27, § 1 (codified at ch. 4.22 RCW). The act calls for the finder of fact to compare the respective fault of the claimant and defendant. RCW 4.22.005. Although the act provides that contributory fault does not bar recovery, as was the case prior to the act's adoption in 1981, contributory "fault" on the part of a claimant diminishes proportionally the amount of damages that the claimant can recover. Under the act, "fault" is defined as "acts or omissions . . . that are in any measure negligent or reckless toward the person or property of the actor or others" and includes an "unreasonable failure to avoid an injury or to mitigate damages." RCW 4.22.015 (emphasis added). A claimant's "negligence relates to a failure to use due care for his [or her] own protection whereas a defendant's negligence relates to a failure to use due care for the safety of others." Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 238, 588 P.2d 1308 (1978). The District and Andersen seek to compare their alleged negligence in hiring and supervising Diaz to Leslie's alleged failure to use care to avoid the abuse by "entering into or pursuing the relationship" with Diaz. Br. of Resp't at 20 n.6.

¶ 8 A showing of negligence requires proof of the following elements: (1) existence of a legal duty, (2) breach of that duty, (3) an injury resulting from the breach, and (4) proximate cause. See Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996); Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 127-28, 875 P.2d 621 (1994); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 30, at 164-65 (5th ed.1984). The existence of a legal duty is a question of law and "`depends on mixed considerations of "logic, common sense, justice, policy, and precedent."'" Snyder v. Med. Serv. Corp., 145 Wash.2d 233, 243, 35 P.3d 1158 (2001) (quoting Lords v. N. Auto. Corp., 75 Wash.App. 589, 596, 881 P.2d 256 (1994) (quoting Hartley v. State, 103 Wash.2d 768, 779, 698 P.2d 77 (1985))).

¶ 9 The District and Andersen argue that contributory fault applies in this case because Leslie had a duty to protect herself against sexual abuse by an adult, a duty she allegedly ignored by voluntarily engaging in a sexual relationship with Diaz. We conclude that, as a matter of public policy, contributory fault does not apply in circumstances such as those described in the Certification Order. Our conclusion is compelled by two principal reasons. First, we are satisfied that the societal interests embodied in the criminal laws protecting children from sexual abuse should apply equally in the civil arena when a child seeks to obtain redress for harm caused to the child by an adult perpetrator of sexual abuse or a third party in a position to control the conduct of the perpetrator. Second, the idea that a student has a duty to protect herself from sexual abuse at school by her teacher conflicts with the well-established law in Washington that a school district has an enhanced and solemn duty to protect minor students in its care. We elaborate on this reasoning hereafter.

A.

¶ 10 Although the District and Andersen contend that a 13-year-old is capable of consenting to sexual relations, the legislature has rejected this notion in the criminal arena by adopting statutes which provide that an adult is guilty of a felony if he or she engages in sexual activity with a minor, even if the child victim "consented" to engage in the sexual conduct. See RCW 9A.44.073 — .096 (statutes pertaining to child rape, child molestation, and sexual misconduct with a minor). Simply stated, such conduct is a strict liability offense in Washington. See State v. Knutson, 121 Wash.2d 766, 775, 854 P.2d 617 (1993). The obvious purpose of these criminal statutes is to protect persons who, by virtue of their youth, are too immature to rationally or legally consent. See State v. Clemens, 78 Wash.App. 458, 467, 898 P.2d 324 (1995) (citing State v. Dodd, 53 Wash.App. 178, 181, 765 P.2d 1337 (1989)).

¶ 11 While we acknowledge that the cause of action which has generated the instant certified question is a civil case and not a criminal case, the notion that minors are incapable of meaningful consent in a criminal law context should apply in the civil arena and command a consistent result. Our conclusion is in accord with rulings in several other jurisdictions that have addressed an issue similar to the one before us now. See Mary M. v. N. Lawrence Cmty. Sch. Corp., 131 F.3d 1220 (7th Cir.1997) (finding no distinction between criminal law and civil law in holding that as a matter of law, a 13-year-old student could not welcome the advances of a 21-year-old school employee); Doe ex rel. Roe v. Orangeburg County Sch. Dist. No. 2, 335 S.C. 556, 518 S.E.2d 259 (1999) (holding that a child's consent to sexual abuse is inadmissible in a civil case on the issue of liability for the same public policy reasons in the state's statutory rape laws); Bohrer v. DeHart, 943 P.2d 1220 (Colo.Ct.App.1996) (holding consent inadmissible as a defense in civil case because of the power imbalance between a child victim and a religious counselor); Wilson v. Tobiassen, 97 Or.App. 527, 534, 777 P.2d 1379 (1989) (holding that a minor's incapacity to consent under criminal law extends to civil law). It would, in our view, be a peculiar rule that consent by a child could be a viable defense against civil liability when the exact conduct does not provide a defense to a defendant in a criminal case.

¶ 12 The District and Andersen contend that contributory fault applies because "Washington has a long history of holding children responsible for their comparative negligence" and that Leslie had a duty to protect herself against sexual abuse but failed to do so. Br. of Resp't at 11. In support of this contention, they cite several cases...