J.N. By and Through Hager v. Bellingham School Dist. No. 501

• Decision Date: 02 May 1994
• Docket Number: No. 32808-5-I,32808-5-I
• Citation: 871 P.2d 1106,74 Wn.App. 49
• Parties: , 90 Ed. Law Rep. 834 J.N., a minor, By and Through Steve HAGER, his Guardian Ad Litem, Appellant, v. BELLINGHAM SCHOOL DISTRICT NO. 501; and an unknown number of John Does and Jane Does, Respondents.
• Court: Washington Court of Appeals

Page 49

74 Wn.App. 49

871 P.2d 1106, 90 Ed. Law Rep. 834

J.N., a minor, By and Through Steve HAGER, his Guardian Ad Litem, Appellant, v. BELLINGHAM SCHOOL DISTRICT NO. 501; and an unknown number of John Does and Jane Does, Respondents.

No. 32808-5-I.

Court of Appeals of Washington Division 1.

May 2, 1994.

Douglas R. Shepherd, Shepherd, Abbott & Woodall, Everson, for appellant.

Michael A. Patterson, Lee, Smart, Cook, Martin & Patterson, P.S., Inc., Seattle, John T. Slater, Bellingham, for respondents.

PEKELIS, Acting Chief Judge.

This action arises out of a series of sexual assaults upon J.N. allegedly committed by A.B. Both were students at Geneva Elementary School in the Bellingham School District (District). J.N. appeals the trial court's dismissal of his negligent supervision claim against the District, contending that evidence of the District's knowledge of A.B.'s dangerous propensities precluded summary judgment on the issue of foreseeability of the sexual assaults. He also challenges the trial court's refusal to compel discovery of A.B.'s psychological assessment records possessed by the District. We reverse on both issues and remand for trial.

I FACTS

A. Overview.

A.B., age 9, enrolled in Geneva Elementary School as a fourth grade student in November 1989. ¹ J.N., then 7 years old, was a first grade student at the school.

Owing to changes in J.N.'s demeanor and appearance in mid-April 1990, J.N.'s teacher, Julie Batten, suspected that J.N. might be the victim of abuse, and she contacted Child Protective Services. Subsequently, J.N. disclosed that he had been sexually assaulted by A.B. in the boys' rest room during recess periods. ² After learning of the allegations of assaults by A.B. upon J.N., the school principal, Robert Austin, during a telephone call with a school social worker, stated that he had "been concerned re: 4th gr[ader] [A.B.] all yr." A.B. was subsequently expelled from Geneva.

B. A.B.'s Behavior Problems at Geneva Elementary School.

During the 1989-90 school year, Geneva personnel documented numerous instances of A.B.'s aggressive and disruptive behavior in school. According to A.B.'s fourth grade teacher, Jean Sigmar, he was "a child that had problems at the very beginning, but they increased". A.B.'s third grade teacher had advised Sigmar that A.B. "was a kid he was concerned about, that his behavior had gotten worse towards the end of the year. He just thought he was a student I should watch." Sigmar characterized this behavior as "very bothersome, annoying ... [and] disruptive."

After speaking with A.B.'s mother, Sigmar wrote her a letter in January 1990 stating "I think we need to pursue the possibility A.B. may be A.D.D. (Attention Deficit Disorder) and need medical help." Sigmar advised Mrs. B. that four other Geneva staff members had reported similar " 'out of control' behavior" and that

[t]here is definitely an escalation of misbehaviors, stemming from A.B.'s lack of self control.... He is extremely physically active, and very spontaneous orally. He is easily fixated in a behavior and needs outside help to desist. He does do better in a very structured situation but this week even that has not made much difference.

In January, Geneva hired Cindy Sky Wohanna to work with several students in a "social skills group" intended to improve the behavior of problem students. Her group, which included A.B., comprised "eight boys, all of whom were significant behavioral problems." According to Wohanna,

A.B. seemed to be a really strong catalyst for acting out. His presence seemed to aggravate the group even more....

....

... He was a catalyst. A number of the quieter boys began wearing their coats to group.... I saw that as fear. That was an interpretation on my part that they were fearful. They asked that A.B. not be in the group.

After speaking with A.B.'s mother, Wohanna believed there was a "family history here of sexual abuse" and began to suspect that A.B. had experienced "some kind of trauma"; she discussed these concerns with Jean Sigmar and Geneva's principal, Robert Austin.

In February and March, Geneva personnel commenced observation of A.B., considering him a "Focus of Concern." Principal Austin observed A.B. during Social Studies, reporting that he engaged in continuous irritating behaviors directed at other students, including hair-pulling, hitting another student on the head with a pencil, poking another student in the back with his foot, and shoving another student off a chair. Austin concluded his observations as follows: "At no time during the entire period that I observed A.B. did he appear to be on task as the rest of the class was." A special education teacher observed A.B. during gym class and reported that he was "physically aggressive towards his peers a total [of] 13 times. This was seen as kicking (3) hitting (6) body butting (3) and pushing (1)."

On March 1, in answering the question "What is the problem" on a report concerning A.B., Sigmar wrote as follows:

[A.B.]'s behavior seems out of control.... He is constantly moving and bothering others with verbal teasing, making faces, pulling hair, poking, kicking, leaning on, etc.

... Even the best, most patient kids ask me privately if they have to work with him.

... He is totally disruptive in cooperative learning situations and group work activities. He has very poor attention skills.

On March 8, Austin wrote to A.B.'s mother, explaining that A.B. had been brought to his attention as a "Focus of Concern" because of his "Behavior in classrooms, PE, and recess". Pursuant to the determination of the Bellingham School District's Special Services Department, Austin requested Mrs. B.'s permission to conduct a special education assessment by a "multi-disciplinary team," including testing by a school psychologist, to determine if A.B. "has a handicapping condition." Mrs. B. gave this permission on March 15.

As part of this assessment, Jean Sigmar completed a Teacher's Report Form, which reiterated prior concerns about A.B.'s behavior. Specifically, Sigmar reported that A.B. did not usually follow rules, did not have acceptable peer relations, had a problem engaging in socially appropriate conversation ("Language is sometimes sexual in nature"), and that he "has had difficulty everywhere he goes--P.E., Music, Library, Lunchroom, Playground."

Psychological testing was performed by Jeremiah Schwartz, Ph.D., school psychologist. On April 20 Schwartz, the MDT leader, prepared a "Special Services Assessment Summary," which determined A.B. had a handicapping condition termed "SBD" (severely behaviorally disabled). A.B. was deemed in need of an individualized education program and declared eligible for special education. Principal Austin sent Mrs. B. a copy of the Summary on May 21.

C. Supervision at Geneva Elementary School During Recess.

Geneva had approximately 350 students in grades K through 5. Under Geneva's 1989-90 "bell schedule," students in kindergarten through second grade would take lunch recess from 11:45 a.m. until 12:30 p.m. At 12:15 lunch recess would commence for grades 3 through 5. It is thus undisputed that there were 15 minutes during the day when 350 students were simultaneously released for recess. It is also undisputed that during these 15 minutes A.B. and J.N. could possibly have been on the playground at the same time. There was also evidence that during some part of the school year, A.B. had served as a "line leader" for J.N.'s class. Under Geneva's "line leader" system, older students would lead classes of younger students to and from some recess periods.

Geneva had one playground supervisor, Pat Davis, an "instructional assistant." Additionally, during recess there were "at least three other adults ... supervising the lunch room". Pat Davis believed A.B. to be a discipline problem owing to his aggressive behavior on the playground, including "[t]ouching kids, grabbing kids, bugging kids, [and] hitting kids".

D. Proceedings Below.

A lawsuit against the District was filed by J.N. through a guardian ad litem, alleging that J.N. had been sexually assaulted on school grounds by A.B. throughout the school year. The complaint asserted a cause of action for negligent supervision over the students during school hours.

During discovery, plaintiff sought production of all records produced or maintained by the district or in the possession of the District that referred to A.B. After a series of objections, motions to compel, and an order that such records be produced, the District continued to withhold the Special Services Assessment pertaining to A.B. In response to a motion to compel production, the District claimed the Assessment was a "Psychologist's Report" privileged under RCW 18.83.110. Finding that the psychologicalevaluation was "privileged by Patient/Psychologist Privilege," the trial court initially denied plaintiff's motion and refused to order production of the Assessment.

Upon plaintiff's motion for reconsideration, however, the trial court ordered production of the Assessment Summary and attachments, but excepted from disclosure "the psychological assessment by Dr. Jeremiah Schwartz and the psychological tests on [A.B.]". ³ Pursuant to this order, the District produced a redacted version of the Summary and attachments. The withheld portion was given to the trial court for review and was subsequently ordered sealed.

The District moved for summary judgment and dismissal of J.N.'s complaint, submitting the affidavits of "educational professionals and school district attorneys from Western Washington," who averred that they had never heard of a sexual assault between two elementary school students. The District asserted that because school personnel had no information to suggest that A.B. "could or would commit a sexual assault," J.N. could not establish any negligence.

In opposition to the motion, J.N. submitted (inter alia) the testimony of two experts. By...