Stenger v. Stanwood School Dist.

• Decision Date: 01 June 1999
• Docket Number: No. 43658-9-I,43658-9-I
• Citation: 95 Wn.App. 802,977 P.2d 660
• Court: Washington Court of Appeals
• Parties: , 134 Ed. Law Rep. 1036 Theresa Marie STENGER and Victor Stenger, husband and wife; and Victoria Douwes and Joost Douwes, husband and wife, Appellants, v. STANWOOD SCHOOL DISTRICT, a municipal corporation, Respondent.

Page 660

95 Wn.App. 802

977 P.2d 660, 134 Ed. Law Rep. 1036

Theresa Marie STENGER and Victor Stenger, husband and wife and Victoria Douwes and Joost Douwes, husband and wife, Appellants, v. STANWOOD SCHOOL DISTRICT, a municipal corporation, Respondent.

No. 43658-9-I.

Court of Appeals of Washington Division 1.

June 1, 1999.

Halleck Howitt Hodgins, Seattle, for Appellants.

David Philip Hansen, Seattle, for Respondents.

Faith Hanna, Federal Way, for Amicus.

COLEMAN, J.

Theresa Stenger and Victoria Douwes appeal the dismissal of their claims against the Stanwood School District for injuries they sustained while working with a multi-handicapped, special education student. The trial court ruled that the appellants' claims were barred by the Industrial Insurance Act, which permits such suits only if the employer deliberately intended to produce the injury. ¹ In Birklid v. Boeing Co., 127 Wash.2d 853, 861-65, 904 P.2d 278 (1995), our Supreme Court analyzed this exception to employer immunity and held that a deliberate intent to injure may be found where an employer had actual knowledge an injury was certain to occur and willfully disregarded that knowledge. Here, the appellants have produced evidence that the District knew its employees would continue to be injured by the student, despite their efforts to modify his behavior or restrain him. Notwithstanding this knowledge, the District continued to require its employees to work with the boy, and the appellants were seriously injured. We conclude that the evidence in its entirety would permit a trier of fact to conclude that the appellants have satisfied the test for intentional injury set forth in Birklid, and we reverse.

FACTS

For the purposes of our review of the summary judgment order, we set forth the facts in the light most favorable to the nonmoving party. See Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998).

Both appellants worked for the Stanwood School District as instructional aides in special education classes and were injured while working with a severely disabled special education student, Jason Springstead. Jason's history with the District is relevant to the appellants' claims and is reviewed below.

Jason transferred to the district in 1990, when he was ten years old. Connie Hall, the District's director of special services, reviewed Jason's educational files prior to his transfer and learned Jason did not speak At Sedro Woolley, Jason was formally reassessed and identified as a multi-handicapped student, both severely mentally retarded and severely behaviorally disabled. ² Jason was severely developmentally delayed: his IQ was below 30 and his cognitive abilities were at a two- or three-year-old's level. His language skills were at or below the level of a two-year-old. The most significant delays affected his adaptive behavior skills, particularly in the areas of social behavior and communication. Sedro Woolley's assessment noted that although Jason enjoyed being with other students and adults and watching his peers play, he "had a lengthy history of highly aggressive, extremely overactive behaviors in the school, home, and community settings."

read, or write, had trouble following directions, and frequently attacked his teachers and other students. Because the District's special education programs in 1990 were geared toward students with milder handicaps, the District contracted with the Sedro Woolley School District to provide services to Jason for the 1990-91 school year.

Sedro Woolley had placed Jason on a regular campus in a self-contained, special education classroom. Candi Styer-Ferguson, a behavioral consultant, was hired to observe Jason and develop his curriculum and a behavior management plan. Jason was physically separated from the other students, and two aides were assigned to work with him. The staff wore long-sleeved shirts and rubber dishwashing gloves and wore their hair short or pulled back. The staff assigned a one-on-one paraprofessional to work with Jason at all times and implemented seclusion timeouts, physical restraint, and an extensive behavior management program. Despite these efforts, Jason managed to inflict numerous minor injuries on the instructional staff. His aggressive behavior included running, kicking, biting, scratching, pinching, hitting, pulling hair, head-butting, and screaming. Sedro Woolley's 1991 assessment concluded that although Jason had made "significant progress," he "continue[d] to require extraordinary resources to successfully access the classroom setting." It also noted that the University of Washington's Child Development and Mental Retardation Center had observed Jason and concluded a comprehensive behavior management plan coordinated between Jason's school and home would be critical to any progress past his current level of functioning. In addition, the center suggested that a short-term residential placement might be necessary to assess and modify Jason's behavioral problems.

In February 1991, a District staff psychologist assessed the adequacy of Jason's programming at Sedro Woolley and communicated the following to his physician in an attempt to have medication prescribed for him:

We are unable to provide an appropriate educational placement for [Jason] here in Stanwood due to the severity of his behavior problems[.]

Jason has historically been very difficult to manage at school ... due to frequent scratching, biting, hair-pulling, etc. of his caregivers and teachers. In his previous school district (Bellingham), the educational team had recommended reducing his time at school to half-days due to the harm they experienced in trying to educate him....

... Although Jason was making some progress from September to December [1990] in the reduction of aggressive behaviors and in increasing his participation in activities at school such as lunch and recess, he has demonstrated a marked increase in aggression since Christmas vacation.... These changes coincided with Jason's father returning to the home and Mrs. Williamson [Jason's aunt] reported that he was hitting Jason and generally disrupting the home environment....

The current behavioral concerns include: screaming, biting, hitting, scratching, pulling-hair, self-abuse (hitting his head with his hands or pounding his head on the floor or table) and wetting his pants intentionally. There seems to be no pattern or predictability as to when the behaviors will occur and Jason will often run across the Our best behavioral interventions have not been successful in reducing the occur[r]ence[s] of Jason's aggression to acceptable levels[.]

room and attack without warning. The school staff [has] many physical scars from his actions and he seriously disrupts others in the classroom, sometimes persisting in his aggressive attitude for up to 3 1/2 hours.

Nevertheless, Jason was transferred to Stanwood Elementary School's self-contained "life skills" class in the fall of 1991. Stanwood Elementary staff had observed Jason at Sedro Woolley, and Julie Wheeler, Stanwood Elementary's special education teacher, testified that at that time she "felt that [Stanwood] could provide a program equal to what was being provided at Sedro Woolley." Wheeler developed a curriculum with Styer-Ferguson and worked with Jason and his Sedro Woolley aides during the summer to become familiar with him and to learn how to restrain him. In addition, Styer-Ferguson observed Jason for five days between 1991 and 1993 and recommended strategies to de-escalate his outbursts and redirect him to the task at hand. These included using timeouts, warnings, verbal reinforcement, and rewards. Wheeler and Styer-Ferguson also posted Jason's behavioral rules and distributed them to the staff and increased the work surface between Jason and his aides.

Hall, the District's director of special services, believed Jason's communication skills and behavior improved at Stanwood Elementary because the school was closer to his home and because the larger classroom allowed the staff to isolate him more effectively. As Jason's ability to socialize with others improved, he began to go to recess and to attend occupational and speech therapy programs across the hall. However, he attended these programs primarily as an observer and still had to be checked or restrained between 10 and 48 times per day.

During the 1991-92 school year, the District provided a general training session for its employees on strategies for handling disruptive students. Wheeler testified that the training was helpful for working with Jason, but also stated that Jason became stronger over time and would wear out the staff restraining him because his adrenaline was so high. The aides testified that sometimes it took more than two adults to restrain him. In October 1992, Wheeler strained her upper body working with Jason and injured her neck, shoulder, lower back, and leg. She suffered pain, loss of motion, and numbness and filed both an accident report and a Labor and Industries (L & I) claim.

In 1993, the staff received another general training session on restraint holds, but Wheeler testified that it did not address how to restrain a very small student and thus did not make working with Jason safer. In March 1993, an aide hyperextended her fingers while working with Jason and filed an L & I claim. In April 1993, Wheeler was injured by Jason again and submitted an accident report in which she had written, "As I sat in the class with other children present, holding an ice pack to my breast, I kept thinking, 'This is wrong. Where are my rights?' " Although Wheeler had reported that Jason had made "some great gains" toward his behavior goals by the end of his first year, she later attributed this to the staff's ability to anticipate his outbursts: "[A]t the end of the second year in '93, we realized that it wasn't so much that [Jason] had changed but that we had gotten better at reading him."

In...