Kok v. Tacoma Sch. Dist. No. 10, Entity Under the Laws of State

• Citation: 317 P.3d 481,179 Wash.App. 10
• Decision Date: 22 January 2014
• Docket Number: No. 44517–4–II.,44517–4–II.
• Court: Washington Court of Appeals
• Parties: Rith KOK, individually and as administrator of the Estate of Samnang Kok, deceased; Makai Johnson–Kok, individually and as a beneficiary of the Estate of Samnang Kok; Rorth Kok, individually and as a beneficiary of the Estate of Samnang Kok; Ry Sou Kok, individually and as a beneficiary of the Estate of Samnang Kok; Kosal Kok, individually and as a beneficiary of the Estate of Samnang Kok; and Lisa Kok, individually and as a beneficiary of the Estate of Samnang Kok; Appellants, v. TACOMA SCHOOL DISTRICT NO. 10, a Municipal Entity under the Laws of the State of Washington; and Douglas Sengsabong Chanthabouly and “Jane Doe” Chanthabouly, individually and the marital community composed thereof; Respondents.

179 Wash.App. 10

317 P.3d 481

Rith KOK, individually and as administrator of the Estate of Samnang Kok, deceased; Makai Johnson–Kok, individually and as a beneficiary of the Estate of Samnang Kok; Rorth Kok, individually and as a beneficiary of the Estate of Samnang Kok; Ry Sou Kok, individually and as a beneficiary of the Estate of Samnang Kok; Kosal Kok, individually and as a beneficiary of the Estate of Samnang Kok; and Lisa Kok, individually and as a beneficiary of the Estate of Samnang Kok; Appellants,

v.TACOMA SCHOOL DISTRICT NO. 10, a Municipal Entity under the Laws of the State of Washington; and Douglas Sengsabong Chanthabouly and “Jane Doe” Chanthabouly, individually and the marital community composed thereof; Respondents.

No. 44517–4–II.

Court of Appeals of Washington, Division 2.

Oct. 22, 2013.

Publication Ordered Jan. 22, 2014.

Paul Alexander Lindenmuth, Benjamin Franklin Barcus, Ben F. Barcus & Associates PLLC, Tacoma, WA, for Appellants.

Michael Alexander Patterson, Charles Philip Edwar Leitch, Sarah E. Heineman, Patterson Buchanan Fobes & Leitch, Seattle, WA, for Respondents.

Igor Lukashin (Appearing Pro Se), Olympia, WA, for Other Parties.

Panel: PENOYAR, JOHANSON and BJORGEN, JJ.

PENOYAR, J.

¶ 1 The estate of Samnang Kok (Estate) sued the Tacoma School District (District) for negligence after Douglas Chanthabouly shot Kok in the hallway at Foss High School. To prevail in its negligence action, the Estate had the burden to show that the District had some reason to believe Chanthabouly might be dangerous. The trial court granted summary judgment for the District, finding that Chanthabouly's actions were not foreseeable. The Estate appeals, arguing that foreseeability is an issue for the jury and that the trial judge, whose spouse had previously represented the District on unrelated issues, should have recused herself under the appearance of fairness doctrine. Because Chanthabouly's behavior and medical records did not indicate that he was at risk for harming other students, we hold that the trial court did not err in finding that his actions were not foreseeable by the District. Additionally, the trial judge did not err by denying the Estate's recusal motion because neither she nor her spouse has an interest in the outcome of the present case. We affirm.

FACTS

¶ 2 On January 3, 2007, Chanthabouly fatally shot Kok in the hallway at Foss High School. The Estate brought this claim against the District, arguing that it was negligent by failing to maintain a safe school environment and by enrolling a student with a severe mental illness.

I. Medical History

¶ 3 Chanthabouly was diagnosed with paranoid schizophrenia following a suicide attempt in January 2005. At the time of his suicide attempt, doctors noted that he was hearing voices, that he claimed to get into fights with people he did not know, and that his thoughts were illogical and his judgment bad. After a brief hospitalization, Chanthabouly received 11 months of outpatient mental health care from Comprehensive Mental Health.¹ His psychiatrists prescribed him antipsychotics, which he took in the morning and at night, to combat his auditory hallucinations. When Chanthabouly's care at Comprehensive Mental Health ended in January 2006, his case manager stated that he was stable while on his medication; he occasionally heard voices, but they did not tell him to harm himself and he was able to separate reality from hallucinations.

¶ 4 Chanthabouly's medical records do not indicate that he was at risk for assaultive behavior. His mental health assessment, completed while he was receiving treatment following his suicide attempt, states that he “has never been assaultive towards others.” Clerk's Papers (CP) at 114. His mental health counselor noted that while he continued to have post-treatment auditory hallucinations, they were not usually commanding or threatening. His psychiatrist testified that she did not see any indication that he would harm others. His medical records also contain assessments from Chanthabouly and his mother. Both of them indicated that he was lonely and had difficulty getting along with his peers but that he did not get into fights or arguments.

II. School History

¶ 5 Chanthabouly attended several high schools within the District. He started the 2002–03 school year at Stadium High School, and then transferred to Foss, where his siblings were enrolled. Chanthabouly began the 2003–04 school year at Mount Tahoma High School because his family had moved into Mount Tahoma's attendance area. He transferred from Mount Tahoma to Oakland High School mid-school year, and remained at Oakland for the rest of the year. ² Chanthabouly began the 2004–05 school year back at Mount Tahoma, but, after his suicide attempt, he transferred to Foss, where his younger brother was enrolled.³ He remained at Foss from April 2005 until January 2007.

¶ 6 Chanthabouly's school record does not contain any incidents of prior assaultive behavior. His suspension at Stadium was for “defiance of authority” and not for fighting. CP at 342. He complained of bullying while at Mount Tahoma, but his record does not show any acts on his part. Additionally, none of the staff noticed any violent behavior while Chanthabouly was at Foss. His principal testified that Chanthabouly was never referred to him for disciplinary issues. Similarly, his counselor stated that teachers would approach him if they were concerned about a student and that no teachers approached him about Chanthabouly. Chanthabouly's teachers reported that, although he had difficulty participating in class and finishing his assignments, he was cooperative and polite. The school security officer testified that he did not have any concerns about Chanthabouly prior to January 2007 and that, while he noticed Chanthabouly talking and laughing to himself, he never witnessed Chanthabouly getting in fights with other students or being bullied.

¶ 7 In 2005, Chanthabouly's mother requested that Foss test him for special education eligibility because he was struggling academically. Foss determined that Chanthabouly was “Emotionally/Behaviorally Disabled” and qualified for special education services to improve his classroom participation and written language skills. CP at 93. As a result, he attended a daily, one hour written language class with a special education instructor. He wrote the following paragraph as a writing assignment for that class: “I nevered [sic] try dirt. I know a sludge face named Sam. He loves dirt. He eats dirt and he's going to live in dirt. He says he's going to live there forever. I think sludge faces are weird.” CP at 215, His teacher wrote, “Good! Interesting.” at the top of the page, CP at 215. She testified that she did not know who Sam was and that there was nothing about the assignment that alarmed her.

III. Procedure

¶ 8 The Estate filed a complaint against the District, alleging that it “was negligent by failing to use reasonable care in maintaining a safe school environment” and by “enrolling an individual whom they knew or should have known had substantial mental illness and as a result, extremely dangerous propensities.” ⁴ CP at 8.

¶ 9 The District moved for summary judgment, arguing that Chanthabouly's actions were not foreseeable. The trial court granted the District's summary judgment motion and dismissed the Estate's claims. The Estate filed a motion for reconsideration, arguing that there were material facts at issue regarding foreseeability. While that motion was pending, the Estate's attorneys discovered that the trial judge's spouse and his firm had represented the District in unrelated matters. The Estate filed a motion for recusal. The trial court denied the Estate's motions for recusal and reconsideration. The Estate appealed both denials directly to the Supreme Court. That court denied direct review and transferred the case to this court.

ANALYSIS

I. Summary Judgment

¶ 10 We review an order granting or denying summary judgment de novo and perform the same inquiry as the trial court. Aba Sheikh v. Choe, 156 Wash.2d 441, 447, 128 P.3d 574 (2006). “A motion for summary judgment is properly granted where ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Michak v. Transnation Title Ins. Co., 148 Wash.2d 788, 794–95, 64 P.3d 22 (2003) (quoting CR 56(c)). We view the facts and any reasonable inferences in the light most favorable to the nonmoving party. Michak, 148 Wash.2d at 794, 64 P.3d 22.

II. Foreseeability

¶ 11 The Estate argues that the trial court erred by granting the District's summary judgment motion because forseeability is generally a question for the jury.⁵ Because reasonable minds would not differ in concluding that Chanthabouly's acts were not foreseeable by the District, we affirm the trial court.

¶ 12 A school district is required to exercise reasonable care—that of a reasonably prudent person under similar circumstances—when supervising students within its custody. J.N. v. Bellingham Sch. Dist. No. 501, 74 Wash.App. 49, 57, 871 P.2d 1106 (1994). “[A] school district has the power to control the conduct of its students while they are in school or engaged in school activities, and with that power goes the responsibility of reasonable supervision.” Peck v. Siau, 65 Wash.App. 285, 292, 827 P.2d 1108 (1992).

¶ 13 But the duty to exercise reasonable care extends only to risks of harm that are foreseeable. J.N., 74 Wash.App. at 57, 871 P.2d 1106. A risk of harm is foreseeable if it is within the “general field of danger covered by the specific duty owed by the defendant.” J.N., 74 Wash.App. at 57, 871 P.2d 1106 (quoting Maltman v. Sauer, 84 Wash.2d 975, 981, 530 P.2d 254 (1975)). Intentional or criminal conduct may be foreseeable unless it is “so highly extraordinary or improbable as to be wholly beyond the range of expectability.” Niece v. Elmview Grp. Home, 131 Wash.2d 39,...