N.L. v. Bethel Sch. Dist.

• Decision Date: 01 September 2016
• Docket Number: No. 91775–2,91775–2
• Citation: 186 Wash.2d 422,378 P.3d 162
• Parties: N.L., Respondent, v. Bethel School District, Petitioner.
• Court: Washington Supreme Court

186 Wash.2d 422

378 P.3d 162

N.L., Respondent

v.Bethel School District, Petitioner.

No. 91775–2

Supreme Court of Washington, En Banc.

Filed September 01, 2016

Francis Stanley Floyd, John Armen Safarli, Floyd, Pflueger & Ringer, P.S., 200 W Thomas St. Suite 500, Seattle, WA, 98119–4296, Counsel for Petitioner.

Julie Anne Kays, John Robert Connelly Jr., Connelly Law Offices, 2301 N 30th St., Tacoma, WA, 98403–3322, Counsel for Respondent.

Gerald John Moberg, James Edyrn Baker, Jerry Moberg & Associates, P.S., P.O. Box 130, 124 3rd Avenue SW, Ephrata, WA, 98823–0130, Amicus Curiae on behalf of Association of Washington School Principals, Washington Association of School Administrators

Bryan Harnetiaux, Washington State Association for Justice Foundation, 517 E. 17th Avenue, Spokane, WA, 99203, Valerie Davis Mcomie, Attorney at Law, 4549 NW Aspen St., Camas, WA, 98607–8302, Daniel Edward Huntington, Richter–Wimberley PS, 422 W Riverside Avenue Suite 1300, Spokane, WA, 99201–0305, Amicus Curiae on behalf of Washington State Association for Justice Foundation.

González

, J.

¶ 1 N.L. met Nicholas Clark at school track practice. She was 14, and he was 18. Both were students in the Bethel School District. Neither N.L. nor any responsible adult on the field knew that Clark was a registered sex offender who had previously sexually assaulted a younger girl who had been about N.L.'s age at the time. The Pierce County Sheriff's Department had informed Clark's school principal of his sex offender status, but the principal took no action in response. Clark persuaded N.L. to leave campus with him and raped her. N.L. sued the district, alleging negligence. We must decide whether Bethel School District's duty to N.L. ended when she left campus and whether its alleged negligence, as a matter of law, was not a proximate cause of her injury. The answer to both questions is no. We affirm.

Facts

¶ 2 N.L. ran track for Bethel Junior High School. Clark ran track for Bethel High School's varsity team. The two schools share the track field between them, and on April 24, 2007, the junior and senior high schools were both using the field for practice. N.L. alleges that Clark acted as a coach and mentor to the younger students on both schools' teams. During practice, a mutual friend introduced N.L. to Clark. The two exchanged phone numbers and started exchanging text messages. Clark told N.L. he was 16 years old. He invited her to lunch after school the next day. Unbeknown to either the junior or senior high school track coach or apparently any other district employee on the field that day, Clark was a registered sex offender.

¶ 3 The next day, Clark and N.L. skipped track practice with the intention, N.L. thought, of going to Burger King for lunch. They left campus in Clark's car. Clark drove past the Burger King, ostensibly to fetch something he had forgotten at home. Instead, Clark took N.L. into his house and raped her.¹

¶ 4 N.L. told a friend what Clark had done to her. The friend told her mother, who informed both the school and N.L.'s mother. The school called the police, and the next month, Clark was charged with third degree rape. Clark ultimately pleaded guilty to second degree assault.

¶ 5 Clark already had an extensive disciplinary history while in the Bethel School District by that day in April 2007. By the seventh grade, he had started making racial slurs and inappropriate sexual comments in class. This behavior escalated to physical assaults and sexual misconduct against younger female students. In June 2004, when Clark was 16, he sexually assaulted another student at Bethel Junior High School. Based on that assault, Clark was charged with indecent liberties and suspended for the rest of the school year. That October, Clark pleaded guilty to attempted indecent liberties, was sentenced to 12 months of community custody, and was required to register as a level one sex offender. Among other things, he was ordered to have no contact with people two or more years younger than himself. N.L. is four years younger than Clark.

¶ 6 That December, the Pierce County sheriff notified Bethel High School's principal that Clark was a registered sex offender. There is considerable evidence in the record that suggests the principal did not inform Clark's teachers, coaches, or relevant staff of Clark's status. The evidence also suggests that the principal did not develop a safety plan, let alone one that would have helped Clark avoid students two or more years younger than him. The record also suggests there was a district policy in place at the time that required the principal to inform Clark's teachers of his status. Clerk's Papers (CP) at 99 (citing District Policy 3143² ); CP at 361–62, 420. The assistant principal testified he did not know of any such policy.

¶ 7 Former Superintendent of Public Instruction Judith Billings analyzed the district's practices around the time N.L. was raped. Superintendent Billings observed that “RCW and Bethel District policy require that the principal ‘must inform any teacher of the student and any other personnel who should be aware of the information’ of a student's sex offender status.” CP at 300. She also noted that “[m]odel policies for Washington State, the standard of care recognized and implemented by most school districts—but not by Bethel—provides that ‘other personnel’ includes coaches and counselors, neither of whom were informed” of Clark's sex offender status. Id. She concluded, among other things, that “[t]he haphazard nature of Bethel's approach to keeping its students safe from registered sex predators frankly boggles the imagination,” and that the district “fell unconscionably below the accepted standard of care ‘to protect students from dangers that are known or should have been known.’ ” Id. at 302, 304.

¶ 8 In 2012, N.L. sued the Bethel School District for negligence on the grounds it had failed to take reasonable precautions to protect her from a known registered sex offender. The district moved for summary judgment, arguing that it had no duty to N.L. because she was not actually in its custody at the time she was raped and that N.L.'s “decision to skip track practice and leave campus with Clark were ‘independent act[s]’ that ‘br[oke] the chain of causation.’ ” CP at 20, 21 (alterations in original) (quoting Riojas v. Grant County Pub. Util. Dist., 117 Wash.App. 694, 697, 72 P.3d 1093 (2003)

).

¶ 9 The trial judge noted in her oral ruling that “the issue is not so much the duty as the causation element, and on that basis I'm going to dismiss the case.” Verbatim Tr. of Proceedings (Jan. 10, 2014) at 18. The Court of Appeals reversed, finding the district had a duty of reasonable care to N.L. and that there was a genuine issue of fact as to whether any breach of the duty was a proximate cause of N.L.'s injury. N.L. v. Bethel Sch. Dist., 187 Wash.App. 460, 463, 348 P.3d 1237 (2015)

. We granted the district's petition for review. N.L. v. Bethel Sch. Dist., 184 Wash.2d 1002, 357 P.3d 665 (2015). We have received an amicus brief in support of the district from the Washington State School Directors Association, the Association of Washington School Principals, and the Washington Association of School Administrators (WSSDA). The Washington State Association for Justice Foundation submitted an amicus brief in support of N.L.

Analysis

¶ 10 To prevail in her negligence suit, N.L. “must show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach as the proximate cause of the injury.”

Crowe v. Gaston, 134 Wash.2d 509, 514, 951 P.2d 1118 (1998)

(citing Reynolds v. Hicks, 134 Wash.2d 491, 495, 951 P.2d 761 (1998) ). At this summary judgment stage, the district contests only the intertwined issues of duty and proximate cause. Thus, they are the only issues before us. CP at 20–21; see also

Lowman v. Wilbur, 178 Wash.2d 165, 169, 309 P.3d 387 (2013) (citing Hartley v. State, 103 Wash.2d 768, 779-81, 698 P.2d 77 (1985) ).

1. Duty

¶ 11 Whether a duty exists is a question of law for the court. Aba Sheikh v. Choe, 156 Wash.2d 441, 448, 128 P.3d 574 (2006)

(citing Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999) ). “As a general rule, our common law imposes no duty to prevent a third person from causing physical injury to another.” Aba Sheikh, 156 Wash.2d at 448, 128 P.3d 574

(citing Restatement (Second) of Torts § 315 (Am. Law Inst. 1965) ). But such a duty can arise when “ ‘a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party's conduct.’ ” Niece v. Elmview Grp. Home, 131 Wash.2d 39, 43, 929 P.2d 420 (1997) (internal quotation marks omitted) (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 227, 802 P.2d 1360 (1991) ). “Intentional or criminal conduct may be foreseeable unless it is ‘so highly extraordinary or improbable as to be wholly beyond the range of expectability.’ ” Kok v. Tacoma Sch. Dist. No. 10, 179 Wash.App. 10, 18, 317 P.3d 481 (2013) (internal quotation marks omitted) (quoting Niece, 131 Wash.2d at 50, 929 P.2d 420 ).

¶ 12 Washington courts have long recognized that school districts have “an enhanced and solemn duty” of reasonable care to protect their students. Christensen v. Royal Sch. Dist. No. 160, 156 Wash.2d 62, 67, 124 P.3d 283 (2005)

. This includes the duty to protect their students from the foreseeable risk of harm the students may inflict on each other. See

McLeod v. Grant County Sch. Dist. No. 128, 42 Wash.2d 316, 319-20, 255 P.2d 360 (1953) (citing Briscoe v. Sch. Dist. No. 123, 32 Wash.2d 353, 362, 201 P.2d 697 (1949) ); see also

J.N. v. Bellingham Sch. Dist., 74 Wash.App. 49, 871 P.2d 1106 (1994). School districts have the duty “to exercise such care as an ordinarily responsible and prudent person would exercise under the same or similar circumstances.” Briscoe, 32 Wash.2d at 362, 201 P.2d 697 (citing Rice v. School Dist. No....