Decision Date07 April 2005
Docket NumberNo. 74857-8.,74857-8.
Citation109 P.3d 805,154 Wn.2d 16,154 Wash.2d 16
PartiesJeanette VALLANDIGHAM and Melinda Clarke, Petitioners, v. CLOVER PARK SCHOOL DISTRICT NO. 400, A Municipal Corporation, Respondent.
CourtWashington Supreme Court

Halleck Howitt Hodgins, Law Offices of Hall Hodgins, Seattle, for petitioners.

William A. Coats, Tacoma, Daniel C. Montopoli, Tacoma, for respondent.

Faith Hanna, Washington Education Association, Federal Way, for amicus curiae (Washington Education Association).

Christopher Lee Hirst, Jennifer Lane Crowder, Preston Gates & Ellis LLP, Seattle, for amicus curiae (Washington Schools Risk Management Pool)

Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for amicus curiae (Washington State Trial Lawyers Assoc.)


¶ 1 This case involves a difficult situation often faced by schools and teachers who serve students with severe disabilities. Two employees of the Clover Park School District have sued the district to recover for injuries caused by R.M., a severely disabled special education student. While Washington's Industrial Insurance Act (IIA), Title 51 RCW, generally precludes employee recovery outside of the workers' compensation scheme established by that statute, RCW 51.04.010, the legislature has created a limited exception, permitting tort recovery if an employer deliberately intended to injure its employee. RCW 51.24.020. This court has interpreted this exception to mean that the employer acts with deliberate intention when it willfully disregards actual knowledge that employee injury is certain to occur. Birklid v. Boeing Co., 127 Wash.2d 853, 865, 904 P.2d 278 (1995).

¶ 2 The trial court here granted summary judgment in favor of the school district, concluding that neither actual knowledge of certain injury nor willful disregard existed in this case. Verbatim Report of Proceedings (VRP) at 40. The Court of Appeals disagreed in part, holding that the school district did have actual knowledge that injury was certain to occur. However, the Court of Appeals ultimately concluded that the school district did not willfully disregard that knowledge. Vallandigham v. Clover Park Sch. Dist. No. 400, 119 Wash.App. 95, 107, 109, 79 P.3d 18 (2003).

¶ 3 We agree with the trial court and hold that the school district in this case did not have actual knowledge that employee injury was certain to occur. We reiterate that in order for an employer to act with deliberate intent, injury must be certain; substantial certainty is not enough. Given the unpredictability that is so often inherent in the behavior of a student with severe disabilities, the school district here could not have been certain that its strategies for modifying R.M.'s behavior would fail such that R.M. would continue to injure school staff.

¶ 4 In addition, we recognize that a conflict exists between Divisions One and Two of the Court of Appeals as to how to evaluate whether an employer has acted with willful disregard. Compare Vallandigham, 119 Wash.App. at 108,

79 P.3d 18

with Stenger v. Stanwood Sch. Dist., 95 Wash.App. 802, 977 P.2d 660 (1999). We note that this court has held that negligence, even gross negligence, cannot satisfy the deliberate intention exception to the IIA. Birklid, 127 Wash.2d at 860,

904 P.2d 278. An inquiry into the reasonableness or effectiveness of an employer's remedial measures sounds in negligence, and we reject any notion that a reasonableness or negligence standard can be applied to determine whether an employer has acted with willful disregard.

I Statement of Facts

¶ 5 R.M. was born in 1986. He has been diagnosed with epilepsy, mental retardation, and autism, which cause severe impairment of his verbal communication skills. He has the cognitive ability of a two- to three-year-old. In 1997, R.M. began attending Woodbrook Middle School in the Clover Park School District where he was placed in the self-contained life skills classroom with approximately six other students.

¶ 6 During the 1997-98 and 1998-99 school years, R.M. was in the life skills program where Mark Brinkhaus was the teacher and Melinda Clarke was an aide. The record reflects 14 days in the 1998-99 school year on which R.M. injured staff or students, sometimes more than once. The majority of the injuries were scratches and slaps. A chart provided by the plaintiffs reflects that R.M. caused a cluster of injuries in March 1999. Otherwise, R.M.'s injury causing outbursts were infrequent and irregular. See Clerk's Papers (CP) at 380 (seven days of recorded injuries between 03/01/99 and 03/30/99; seven other days of recorded injuries interspersed throughout the school year.). ¶ 7 In the fall of the 1999-2000 school year, Jeanette Vallandigham became R.M.'s teacher. Clarke, the classroom aide, reported that September went relatively smoothly for R.M. Around late September and early October 1999, R.M.'s behavior became increasingly aggressive and he began to inflict injuries on staff and students. Vallandigham and other school personnel believed that this increased aggression was caused by the fact that R.M. was no longer taking one of his medications. Between September 14, 1999 and October 25, 1999, he assaulted or injured students or staff approximately 18 times by scratching, hitting, pulling hair, biting, pinching, head butting, and grabbing glasses.

¶ 8 On October 21, Vallandigham sent an e-mail asking for an Individualized Education Program (IEP) team1 meeting about R.M. and requesting a one-on-one aide for him. As a result, on October 25 the school district implemented a plan: (1) the school nurse would contact R.M.'s doctor to discuss the medication situation; (2) Terry Howard, Woodbrook's special education department head, would conduct a functional behavioral analysis; and (3) Vallandigham would continue to document R.M.'s behaviors. When these steps were completed, an official IEP meeting would be convened to discuss changes to R.M.'s program. In her deposition, Vallandigham testified that she believed that these actions were appropriate.

¶ 9 On the next day, October 26, 1999, when Vallandigham intervened to prevent R.M. from scratching another student, R.M. turned and head-butted Vallandigham. She fell backwards, hit her head on a counter, and lost consciousness. Vallandigham filed a workers' compensation claim for this injury. Then, on October 27, 1999, R.M. bit Melinda Clarke on her breast, leaving a mark. She too filed a workers' compensation claim for the injury.

¶ 10 Both Terry Howard and Mark Brinkhaus completed behavior evaluation reports on R.M. on October 29, 1999 and November 1, 1999. Brinkhaus reported that R.M. physically hurt other students or teachers more than once a week, while Howard reported that R.M. hurt other students or teachers "daily at various times." CP at 221. In his deposition, Howard opined that if nothing were done to stop R.M.'s behavior, he believed that it would continue. A separate functional behavioral assessment form that was completed on October 29, 1999 indicated that R.M. would frequently scratch other students. It also noted that when restrained, R.M. would "kick, pull hair, bite, and head butt to get away." CP at 184. These problem behaviors occurred daily and began when R.M. went off his medications.

¶ 11 Between October 26 and November 12, 1999, R.M. caused a total of 20 more injuries, mostly scratches. Virginia Alonzo, the school district special education officer, stated that at the end of October, the district was aware that it was a "probability," but not "certain" that R.M would have future outbursts that injured staff and students. CP at 596.

¶ 12 As planned, on November 12, 1999 the school district conducted an IEP meeting, which Vallandigham attended. Various placement options were considered, but the IEP team concluded that the self-contained special education classroom was still the most appropriate placement for R.M. at that time.2 Vallandigham's requests for a male one-on-one aide for R.M. and an isolation room, to be available at all times for the purpose of containing R.M. when needed, were incorporated into the program. This IEP also contained a detailed behavior plan for dealing with R.M.'s behaviors on a day-to-day basis. The behavior plan included a continuum of responses ranging from redirection, to time out in the isolation room, to suspension for the rest of the day. If these strategies were not successful, the team concluded R.M.'s schedule would have to be reduced to half days. The IEP also contained an aversive therapy plan. Vallandigham signed the IEP and testified in her deposition that she had agreed with these strategies. However, she also noted that she was told by school officials that R.M.'s placement could not be changed until the school tried a one-on-one aide and a half day schedule.

¶ 13 Around the time of the November IEP meeting, the district began its process for hiring a one-on-one aide to work exclusively with R.M. In the meantime, Gabriele Williamson, a para-educator3 from another classroom, was transferred to assist with R.M. beginning in early November. On November 29, an outside consultant was hired to perform another functional behavioral assessment on R.M. The consultant believed that changes could be made in Vallandigham's classroom that would improve R.M.'s behavior. He suggested that R.M.'s day be more structured and that his activities be more directly targeted toward his IEP goals and objectives. The consultant also recommended changes in the use of R.M.'s isolation room such that the room be used only for short periods of time and only as the result of clearly identified behaviors.

¶ 14 In December 1999 a full time one-on-one aide, Wanda Dalton, was hired to work with R.M. within the life skills classroom. Even so, R.M.'s behavior problems persisted. Between November 15 and December 31, 1999, approximately 38 injuries to students and staff were reported. Again, most were...

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