Gutierrez v. Olympia School District, 44324-4-II

CourtCourt of Appeals of Washington
Writing for the CourtBJORGEN, A.C. J.
Decision Date10 December 2014
PartiesABBIGAIL GUTIERREZ, individually, and NL, a minor, Respondents, v. OLYMPIA SCHOOL DISTRICT, Appellant.
Docket Number44324-4-II

ABBIGAIL GUTIERREZ, individually, and NL, a minor, Respondents,


No. 44324-4-II

Court of Appeals of Washington, Division 2

December 10, 2014



Abbigail Gutierrez, personally and on behalf of her minor daughter, NL, sued the Olympia School District after Gary Shafer, a bus driver employed by the District, sexually abused NL aboard NL's kindergarten bus. A jury found that the District's negligence proximately caused $1, 425, 000 in damages to NL and Gutierrez. The District appeals the jury's verdict, arguing that the trial court erred by admitting (1) certain evidence concerning the number of times Shafer rode NL's bus; (2) evidence that Shafer had abused other kindergarten girls on District buses and possessed child pornography; and (3) an expert witness's opinion that the District should have taken certain measures that would have prevented the abuse. The District further contends that (4) the remaining properly admitted evidence does not support the jury's verdict. Concluding that any errors did not, within reasonable probabilities, materially affect the verdict, we affirm.


On December 30, 2010, NL disclosed to Gutierrez that "Gary, " a "helper on the bus, " had touched her inappropriately. Verbatim Report of Proceedings (VRP) at 1063-064. Gutierrez immediately reported the abuse to the Thurston County Sheriff s Office.

Detective Cheryl Stines investigated the report and conducted a one-on-one interview with NL, which was recorded by video. NL stated that she had sat in Shafer's lap on "the second seat" on the school bus and that he had put his hand in her underwear and "tickled [her] private1' sometime after Halloween and before Thanksgiving or Christmas of 2010. VRP at 201-04 (transcription of excerpt of the video recording of Stines' interview with NL: Ex.. 97, as played to the jury). NL later identified Shafer from a copy of his driver's license photo. Shafer eventually admitted to sexually abusing several girls, including NL, while driving or riding along on District buses. He ultimately pled guilty to three counts of first degree child molestation involving NL, NL's seat mate VV, and another kindergarten girl, and to one count of possession of depictions of a minor engaged in sexually explicit conduct.

Gutierrez filed this lawsuit in her individual capacity and as guardian of NL, alleging that the District had failed (1) to adequately supervise and protect NL, (2) to maintain adequate security on its buses, (3) to properly supervise Shafer, and (4) to properly supervise and train its employees to recognize and prevent sexual abuse of children; and that these omissions proximately caused injuries to NL and Gutierrez. The complaint did not name Shafer or any other individual as a defendant.

A. Pretrial Motions

The District moved in limine to exclude, among other evidence, the testimony of all expert witnesses retained by Gutierrez except one, Mark Whitehill, Ph.D., on the ground that Gutierrez did not timely disclose the experts' opinions. The District also moved in limine to exclude a psychological evaluation of Shafer performed as part of the presentence investigation, any statements attributed to Shafer, and any reference to Shafer's sexual abuse of other students. The trial court reserved ruling on these motions.

On the first day of trial, the court denied the District's motion to exclude the testimony of Gutierrez's expert witnesses, but granted the District's motion to exclude all evidence concerning statements attributed to Shafer, except for the judgment and sentence in his related criminal case. The court also prohibited Gutierrez's experts from referring to those statements even though the experts had relied on them in reaching their opinions. After balancing the probative value of the evidence against the risk of unfair prejudice under ER 403, the court ruled the judgment and sentence admissible, [1] but excluded the statements attributed to Shafer because they amounted to hearsay and posed too great a risk of unfair prejudice to the District.

The court also denied Gutierrez's later motion to have Shafer transported from prison to testify on the grounds that Gutierrez had not named Shafer as a party or a potential witness and that the risk of unfair prejudice to the District outweighed the probative value.

B. Evidence of the Frequency and Nature of Shafer's Rides on Kindergarten and Preschool Buses

A significant portion of the trial testimony concerned the District's policy of permitting its bus drivers to ride along unpaid on other drivers' mid-day kindergarten and preschool routes. Fred Stanley, the District's transportation director, testified that he allowed Shafer to ride along on NL's bus because Shafer "was assisting students to remain seated and make sure they got to their parents on time and learning the bus route so he could drive it more on time when he would substitute]" for the regular driver. VRP at 481-82.

At trial, Mario Paz, the driver regularly assigned to NL' s mid-day kindergarten route during the 2010-2011 school year, testified that he had been trained not to allow adults to sit with children on the buses and that the District had a policy prohibiting bus drivers from sitting with children while riding along on buses. Paz testified also that he did not enforce the rule with Shafer because he "trusted [Shafer and] figured he wouldn't do anything to the kids." VRP at 67-68. Paz admitted that he had considered Shafer a friend. Paz also gave conflicting testimony about the District's policy and practice.[2] Compare, e.g., VRP at 61-62 (Paz testified: "We were trained to make sure [adults riding the bus] don't sit with the kids, yes. That's correct.") and VRP at 152 (Paz admitted that he stated in his deposition, in his own words, that "[p]olicy states you are not allowed to sit with kids") with VRP at 103 (Paz testified: "There's no rule [prohibiting adults from sitting with students]. That's a mistake that I made in my own deposition.").

Paz testified that NL and her friend, VV, sat with Shafer in the seat directly behind the driver, the only seat on the bus outside the field of view of the mirrors the driver used to monitor activity on the bus. Paz admitted that Shafer did not ride the bus in order to learn the route and that Shafer could not have seen where the bus was going from that seat. Paz also admitted that Shafer did not ride the bus as a monitor or to help Paz manage students and that Paz found Shafer's conduct "strange." VRP at 86-87. Paz further acknowledged that, the first time Shafer asked to ride along on Paz's bus, he had asked transportation director Stanley's permission, but had "never bothered asking again because Fred Stanley just let [Shafer] ride whenever he wanted." VRP at 69. Paz testified that Shafer rode his bus a maximum of two or three times, that no children rode the bus one of those times, and that Shafer sat with NL and W only one time for about 20 minutes. However, when asked whether he knew that NL and W knew Shafer as "Gary, " Paz answered, "Yeah. He asked them all the time." VRP at 95.

Contrary to his previous testimony, Paz denied on cross-examination that the transportation department had ever had a rule that adult passengers should not sit with children. Paz also denied that Shafer had said or done anything suspicious. When asked why Shafer wanted to ride the bus, Paz answered, "I can't remember why." VRP at 107. Counsel for the District then asked Paz if "it had anything to do with him learning the route or substituting for you?" VRP at 107. Paz responded that Shafer "wanted just to ride the bus to make sure there [were] no mistakes on the route." VRP at 108.

Several other District bus drivers also testified that Shafer sometimes rode their buses. Driver Dale Thompson testified that Shafer rode along as many as 40 times over 5 years on Thompson's kindergarten route. Driver Thomas Reeves testified that Shafer asked to ride along on Reeves's kindergarten route because "[Shafer] was bored and didn't have anything to do." VRP at 341. Driver Thomas Engle testified that Shafer rode along "a couple of times" and "sat and chatted with kids" when Engle substituted on kindergarten routes. VRP at 367-73. Engle testified that Shafer moved between seats and sat with children during these rides and that he could not recall any other transportation department employee who would move around the bus and sit with kindergarten children while riding along. District driver John Bakewell also testified that Shafer often rode along when Bakewell substituted on kindergarten and preschool routes.

Stanley testified that the transportation department did not keep records of drivers' requests to ride along on mid-day bus routes. Stanley testified that drivers had to obtain his permission before riding along with another driver but that he had no controls in place governing which drivers could ride along on other drivers' routes, that he had never denied any of Shafer's requests to ride along, and that Shafer might have ridden Paz's bus without Stanley's permission.

Stanley also testified that he thought Shafer's trips on NL's bus served an "educational purpose" because Shafer was assisting students and learning the bus route. VRP at 481. When confronted with contrary testimony from his own deposition, however, Stanley admitted that the District had no valid reason for Shafer to have ridden along on Paz's route more than one or two times in the fall of 2010.

After Shafer came under investigation, Stanley distributed a survey to drivers asking if they recalled when Shafer had ridden their buses. Paz and Bakewell did not respond, but five other drivers did. The survey showed that four drivers recalled Shafer riding along on their midday kindergarten routes 11 times in the 2010-to-2011 school year. Driver Todd Adams...

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