N.L. v. Bethel Sch. Dist.

• Decision Date: 28 April 2015
• Docket Number: No. 45832–2–II.,45832–2–II.
• Citation: 187 Wash.App. 460,348 P.3d 1237
• Court: Washington Court of Appeals
• Parties: N.L., Appellant, v. BETHEL SCHOOL DISTRICT, Defendant.

187 Wash.App. 460

348 P.3d 1237

N.L., Appellant

v.BETHEL SCHOOL DISTRICT, Defendant.

No. 45832–2–II.

Court of Appeals of Washington, Division 2.

April 28, 2015.

Julie Anne Kays, John Robert Connelly Jr., Connelly Law Offices, Tacoma, WA, for Appellant.

Francis Stanley Floyd, John Armen Safarli, Floyd, Pflueger & Ringer, P.S., Seattle, WA, for Respondent.

Opinion

SUTTON, J.

¶ 1 NL¹ appeals the superior court's summary judgment dismissal of her negligence claim against Bethel School District (BSD). NL sued BSD after she was sexually assaulted by a registered sex offender BSD student, Nicholas Clark, while the two were off school grounds. NL has asked us to determine whether BSD, which knew of Clark's sex offender status, owed a duty of care to protect NL and, if so, whether as a matter of law NL's sexual assault was within the general field of danger that BSD could have or should have reasonably anticipated. We hold that (1) BSD owed a duty of reasonable care to protect NL and monitor Clark, and (2) genuine issues of material fact exist as to whether BSD breached its duty and whether that breach was a proximate cause of NL's injury. We reverse and remand.

FACTS

I. Clark's Initial Contact with NL

¶ 2 In April 2007, NL, age 14, attended eighth grade at Bethel Junior High School. Clark, age 18, attended the twelfth grade at Bethel High School. Both schools were part of BSD. The track and football fields link the two school campuses together. Clark and NL were members of their respective school's track teams. Both track teams held practices on the same track field at the same time at the end of the school day during track season.

¶ 3 At the end of April, a mutual friend introduced NL to Clark while they were on the track field for team practice. Clark lied to NL about his age, telling her that he was 16 years old. Clark and NL exchanged cell phone numbers and began sending text messages to each other that day.

¶ 4 The day after meeting NL, Clark urged her to skip track practice to go to nearby Burger King for lunch with him. Once in the car, Clark told NL he had forgotten something at home and needed to retrieve it. NL went into the house after Clark invited her inside, and once they were inside his bedroom Clark sexually assaulted NL. Clark returned NL to school so she could catch the school bus. NL told a friend that she had had sex with Clark and that information reached the junior high school who notified the police. A year later, in July 2008, Clark pleaded guilty to second degree assault and to failure to register as a sex offender.

II. BSD's Records on Clark

¶ 5 Clark attended school within BSD from kindergarten through twelfth grade. BSD's records show that it disciplined Clark more than 78 times and suspended him on 19 separate occasions.² BSD documented Clark's sexually inappropriate conduct in seventh, eighth, and ninth grades. During Clark's ninth grade year, Clark grabbed a girl in the hallway, kissed her on her mouth and breast area, grabbed her buttocks, and pulled her pelvis into him. Clark was convicted of attempted indecent liberties due to this conduct, and BSD suspended him for the remainder of the school year over this incident. As part of Clark's sentence, he was put on probation for 12 months and required to register as a level one sex offender, which he did.

¶ 6 Following his conviction and registration as a sex offender, Clark continued to engage in disruptive and inappropriate conduct at school. Two months after BSD received notice of Clark's sex offender status, while Clark was still on probation in his tenth grade year, he sexually assaulted a female student on the bus. In the twelfth grade, Clark physically assaulted one student, verbally harassed another student, yelled obscenities in class, went inside the girl's bathroom, assaulted two students on two different occasions, and left class and did not return.

III. BSD's Monitoring of Clark

¶ 7 Wanda Riley–Hordyk served as the high school's principal while Clark was a student there. On December 7, 2004, Riley–Hordyk received notice from Pierce County that Clark was a level one registered sex offender. BSD policy required Riley–Hordyk to inform Clark's teachers and other personnel of his sex offender status, but she never did so.³

Riley–Hordyk did not tell the high school's teachers the names of any registered sex offenders in attendance; she told them only that some students were registered sex offenders “but [she was] not at liberty to [disclose those students'] names.” CP at 333. BSD's Assistant Superintendent, Michael Brophy, testified that it is “absolutely best practice” and consistent with written policy for the principal to tell the registered sex offender's teachers, who come into contact with that student regularly, about the student's status. CP at 394.

¶ 8 BSD did not have a specific policy requiring that the athletic coach of a registered student sex offender be informed of the student's status if that sport involved the student sex offender intermingling with younger students. If a coach were a certified teacher, it may have been the responsibility of the principal to disclose the name to the coach as well, but Brophy testified that was not a “solid practice” at the time. CP at 395–96. Clark's track coach, a certified teacher, did not recall Riley–Hordyk informing him of Clark's sex offender status nor of any other student's sex offender status. Nor did Riley–Hordyk inform the junior high school track coach that Clark was a registered sex offender.

¶ 9 In 2007, BSD did not have any established policy or procedure for monitoring students who were registered sex offenders. Riley–Hordyk testified that she had an “unwritten” process in place to monitor student sex offenders that included a meeting between the counselor for the student sex offender and the assistant principals who are involved in monitoring students. CP at 319–330. None of the other high school or BSD administrators were aware of or involved in this process, including BSD's Assistant Superintendent Brophy; BSD's Athletic Director and Director of Campus Safety, Dan Heltsley; or the high school's other assistant principals.

¶ 10 Riley–Hordyk did not routinely formulate a safety plan procedure with registered sex offenders, but she met with the sex offender students individually to review the high school's code of conduct and had them affirm by their signature that those students (1) knew that the school was aware of his or her offender status, and (2) understood the code of conduct. BSD did not have a policy that required school administrators to formulate safety plans with sex offender students. Riley–Hordyk did not create a written safety plan for supervising Clark during his probation in tenth grade or after she received notice of Clark's registration as a sex offender.

IV. Procedure

¶ 11 NL sued BSD, alleging negligence because BSD had a duty to protect her from the dangerous propensities of a fellow student and it breached that duty by failing to monitor Clark. BSD moved for summary judgment and dismissal. In opposition to BSD's motion, Judith Billings, former Washington State Superintendent of Public Instruction, provided unrebutted expert opinion on the standard of care for a school district, its duty to monitor and develop a safety plan for Clark, and inform administrators of his sex offender status to protect its students. Billings opined that “[b]ut for the indifference and inaction of Bethel School District, NL would more probably than not, not have been taken by Nicholas Clark to his home, [sexually assaulted] and suffered the documented, extensive consequence of that event.” CP at 303 (capitalization omitted).

¶ 12 The superior court granted BSD's motion, ruling that (1) BSD's duty did not extend to NL's harm because the harm occurred off school grounds, and (2) the harm was not reasonably foreseeable as a matter of law. NL appeals.

ANALYSIS

¶ 13 We review an order granting summary judgment de novo and perform the same inquiry as the trial court.

Durland v. San Juan County, 182 Wash.2d 55, 69, 340 P.3d 191 (2014). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We view all facts and inferences in the light most favorable to the nonmoving party. Kok v. Tacoma Sch. Dist. No. 10, 179 Wash.App. 10, 17, 317 P.3d 481 (2013), review denied,

180 Wash.2d 1016, 327 P.3d 55 (2014). To prove a negligence claim, a plaintiff must show (1) that the defendant owed a duty to him or her, (2) the defendant breached that duty, (3) injury, and (4) a proximate cause between defendant's breach and plaintiff's injury. Lowman v. Wilbur, 178 Wash.2d 165, 169, 309 P.3d 387 (2013).

¶ 14 NL argues that the trial court erroneously granted BSD summary judgment because she presented sufficient evidence that (1) BSD owed a duty of reasonable care to protect her and monitor Clark, and (2) genuine issues of material fact existed as to whether BSD breached its duty to protect her and whether BSD's breach was a proximate cause of her injury. We agree.

I. Duty and Breach

¶ 15 The existence of a legal duty is a question of law that we review de novo. N.K. v. Corp. of Presiding Bishop, 175 Wash.App. 517, 525, 307 P.3d 730 (2013), review denied, 179 Wash.2d 1005, 315 P.3d 530 (2013). Whether a defendant breached its duty is generally a question of fact. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999). Admissible expert opinion testimony on an ultimate issue of fact is sufficient to create an issue as to that fact, precluding summary judgment. J.N. v. Bellingham Sch. Dist., 74 Wash.App. 49, 60–61, 871 P.2d 1106 (1994).

¶ 16 When a student is at school, he or she is subject to the rules and discipline of the school, and the protective custody of the teachers is substituted for that of the parent.

J.N., 74 Wash.App. at 57, 871 P.2d 1106. A school district has a duty to exercise reasonable...