Quynn v. Bellevue Sch. Dist., 73825–9–I

• Decision Date: 29 August 2016
• Docket Number: No. 73825–9–I,73825–9–I
• Citation: 195 Wash.App. 627,383 P.3d 1053
• Court: Washington Court of Appeals
• Parties: Allen G. Quynn and Jennifer A. Quynn, husband and wife, individually, and as parents and guardians on behalf of Lillian J. Quynn, their minor child, Appellant, v. Bellevue School District, Respondent.

195 Wash.App. 627

383 P.3d 1053

Allen G. Quynn and Jennifer A. Quynn, husband and wife, individually, and as parents and guardians on behalf of Lillian J. Quynn, their minor child, Appellant,

v.Bellevue School District, Respondent.

No. 73825–9–I

Court of Appeals of Washington, Division 1.

FILED: August 29, 2016

Katherine George, Harrison–Benis LLP, 2101 4th Ave., Ste. 1900, Seattle, WA, 98121–2315, for Appellant.

James Edyrn Baker, Jerry Moberg & Associates, P.S., P.O. Box 130, 124 3rd Ave. S.W., Ephrata, WA, 98823–0130, Kenneth Wendell Masters, Masters Law Group PLLC, 241 Madison Ave. N., Bainbridge Island, WA, 98110–1811, for Respondent.

Dwyer

, J.

¶1 Lillian Quynn's pare, individually and as her guardians, sued the Bellevue School District, alleging that it was negligent in failing to protect their daughter from harassment, intimidation, and bullying on the school bus. A jury returned a verdict in favor of the school district, finding that the Quynns failed to prove that the district acted negligently. On appeal, the Quynns first contend that a common carrier's duty of care applied to the district's relationship with its student while on the bus. In the context of the claim herein, the Quynns are wrong. However, the Quynns are correct in their next contention, that the instructions given to the jury did not properly articulate the legal obligations owed by the district to its student and required proof of unnecessary facts in order for the Quynns to prevail. Accordingly, we reverse.

I

¶2 Allen and Jennifer Quynn sued the Bellevue School District, claiming that the district had been negligent in failing to protect their daughter Lillian from harassment, intimidation, and bullying that she suffered while riding the school bus during her eighth grade year of middle school.¹

¶3 According to Lillian, several of her male classmates routinely harassed, intimidated, or bullied other students on the school bus. In December 2010, Lillian witnessed an especially serious incident in which a female classmate was targeted by this group and reported it to a school administrator. Thereafter, Lillian asserted, she was increasingly the focus of the boys' aggression. Lillian recounted being called insulting names, having paper “hornets” thrown at her, which caused welts to form on her skin, and, on one occasion, having her buttocks groped. As a result of being bullied, the Quynns asserted, Lillian experienced a number of serious physical and emotional afflictions.

¶4 It is undisputed that Lillian never reported to anyone any of the incidents of harassment, intimidation, or bullying that she personally experienced. Her claim that school personnel should have foreseen and protected her from the harm that she experienced was based on school administrators' alleged awareness of other, similar incidents of harassment, intimidation, and bullying, particularly the December 2010 incident reported by Lillian.

¶5 The Quynns laid out their theory of the case during closing argument. They claimed that, after Lillian reported the December 2010 incident, the school “put its head in the sand” and Lillian suffered from retaliatory harassment as a result. The Quynns argued that district personnel knew or should have known that the alleged harassment, intimidation, and bullying on the school bus went beyond the particular students involved in the December 2010 incident. While acknowledging that the school spent “a ton of time” responding to that incident, they argued that it should have done more. Specifically, the Quynns argued that the school should have followed up with Lillian and should have created a “safety plan” for her to protect against retaliation. They argued that these failures to act permitted her to be bullied, which, in turn, caused her to suffer emotional and physical injury.

¶6 Ultimately, the jury determined that the Quynns did not prove that the district acted negligently.

II

¶7 The Quynns' appeal centers on their contention that the jury was misinstructed by the trial court as to the legal obligations of the school district to Lillian and other students. The Quynns advance three major challenges to the trial court's instructions. They are wrong as to the first challenge but correct as to the other two.

¶8 The Quynns' contentions primarily concern Instruction 15, which provided:

A school district has a duty to take ordinary care to prevent harassment, intimidation and bullying of one student by another if it knows or has reason to know that a student is the subject of harassment, intimidation or bullying by another student.

Harassment, intimidation and bullying means any intentionally written or verbal or physical act when the intentional electronic, written, verbal, or physical act:

a) Physically harms a student or damages the student's property; or

b) Has the effect of substantially interfering with a student's education; or

c) Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment; or

d) Has the effect of substantially disrupting the orderly operation of the school.

¶9 The Quynns assert that the foregoing instruction was incorrect for three reasons: first, because the jury was not instructed that the district owed Lillian the highest duty of care, one applicable to common carriers; second, because the instruction included a definition of harassment, intimidation, and bullying that wrongly and unfairly limited the reach of their negligence claim; and, third, because the instruction improperly articulated the duty and responsibility owed to Lillian by the district.

A

¶10 The Quynns contend that Instruction 15 was incorrect with regard to the level of duty a school district owes to its students.² This is so, they assert, because a school district, in all respects, owes its students the highest duty of care, not simply a duty of ordinary care, when the students are passengers on a school bus. We disagree.

¶11 As a general rule, “there is ... no duty to prevent a third party from causing physical injury to another, unless ‘a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party's conduct.’ ” Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 227, 802 P.2d 1360 (1991)

(quoting Petersen v. State, 100 Wash.2d 421, 426, 671 P.2d 230 (1983) ). Pursuant to well-established case law, the special relationship between school districts and their pupils gives rise to such a duty to protect.

¶12 The leading case in this regard is McLeod v. Grant County School District No. 128, 42 Wash.2d 316, 255 P.2d 360 (1953)

. Therein, the plaintiff-student was raped by older students during a school recess in a dark, unlocked room beneath school bleachers. McLeod, 42 Wash.2d at 318, 255 P.2d 360. The Supreme Court held that the victim's suit against the school district could proceed even though school officials were unaware of the “vicious propensities” of the older students. McLeod, 42 Wash.2d at 321, 255 P.2d 360. The court reasoned that, because a child is compelled to attend school and has an involuntary relationship with the school district, the district has a duty “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect the pupils in its custody from such dangers.” McLeod, 42 Wash.2d at 320, 255 P.2d 360;accordChristensen v. Royal Sch. Dist. No. 160, 156 Wash.2d 62, 67, 124 P.3d 283 (2005)

(referring to “the well-established law in Washington that a school district has an enhanced and solemn duty to protect minor students in its care”); J.N. v. Bellingham Sch. Dist. No. 501, 74 Wash.App. 49, 58–59, 871 P.2d 1106 (1994) (recognizing a school's duty to supervise and protect students where an older student repeatedly sexually assaulted a younger student in a restroom located in the school's cafeteria). “The duty imposed under these circumstances is one of reasonable care: as it supervises the pupils within its custody, the district is required to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances.” J.N., 74 Wash.App. at 57, 871 P.2d 1106 (citing Briscoe v. Sch. Dist. No. 123, Grays Harbor County, 32 Wash.2d 353, 362, 201 P.2d 697 (1949) ). “The basic idea is that 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 It is also true, however, that a school district may owe its students duties that arise separate and apart from the special relationship that begets the protective duty described above. In particular, when a school district acts as a common carrier to its students, it may also owe them the duty that arises from the carrier-passenger relationship. This circumstance was addressed in Yurkovich v. Rose, 68 Wash.App. 643, 847 P.2d 925 (1993)

. Therein, a girl was killed in an accident after a school bus driver dropped her off alongside a highway without activating the bus “stop” bar or warning lights, and without ensuring that the student crossed in front of the bus instead of behind it, as regulations required. Yurkovich, 68 Wash.App. at 646, 847 P.2d 925. Affirming a directed verdict of negligence, we stated: “Under the common law, school bus operators owe child passengers a duty of the highest degree of care consistent with the practical operation of the bus.”Yurkovich, 68 Wash.App. at 648, 847 P.2d 925 (emphasis added); accord Webb v. City of Seattle, 22 Wash.2d 596, 602, 157 P.2d 312 (1945)“[T]hose who convey children to and from school must exercise toward them the highest degree of care consistent with the practical operation of the conveyance.” (Emphasis added.)); Leach v. Sch. Dist. No. 322 of Thurston County, 197 Wash. 384, 386, 85 P.2d 666 (1938)

; Phillips v. Har d grove, 161 Wash. 121, 124, 296 P. 559 (1931).

¶14 The...