Vallandigham v. Clover Park School Dist.

• Citation: 79 P.3d 18,119 Wash.App. 95
• Decision Date: 12 November 2003
• Docket Number: No. 30301-9-II.,30301-9-II.
• Court: Washington Court of Appeals
• Parties: Jeanette VALLANDIGHAM and Melinda Clarke, Appellants, v. CLOVER PARK SCHOOL DISTRICT NO. 400, a municipal corporation, Respondent.

79 P.3d 18

119 Wash.App. 95

Jeanette VALLANDIGHAM and Melinda Clarke, Appellants, v. CLOVER PARK SCHOOL DISTRICT NO. 400, a municipal corporation, Respondent.

No. 30301-9-II.

Court of Appeals of Washington, Division 2.

November 12, 2003.

Halleck Howitt Hodgins, Law Offices of Halleck H. Hodgins, Seattle, WA, for Appellant.

William A. Coats, Attorney at Law, Tacoma, WA, for Respondent.

Faith Hanna, Washington Education Ass'n., Federal Way, WA, Jennifer Lane Crowder, Christopher Lee Hirst, Preston Gates & Ellis LLP, Seattle, WA, for Amicua Curiae.

BRIDGEWATER, J.

Jeanette Vallandigham and Melinda Clarke, special education instructors at Woodbrook Middle School, sued Clover Park School District (Clover Park) for injuries caused by a handicapped student who had a history of aggression. They sued under the deliberate intention exception to the Industrial Insurance Act (chapter 51.24 RCW), but the trial court granted summary judgment in Clover Park's favor. Vallandigham and Clarke appeal, alleging that issues of material fact exist as to whether Clover Park willfully disregarded its actual knowledge of their certain injury. We affirm the trial court's judgment, holding that no issue of material fact exists on the issue of willful disregard. Clover Park took many steps to alleviate the risk posed by the student, and for us to hold these measures inadequate would wrongly introduce a negligence standard into the deliberate intention exception.

R.M. was born January 4, 1986. He is an autistic child with a seizure disorder and the cognitive ability of a two-to-three year old. He transferred to the Clover Park School District in 1995. Throughout his time in Clover Park, R.M. exhibited aggressive behavior and inflicted injuries of varying severity on students and staff.

R.M. was 13 years old when he began the 1999-2000 school year. During that year, R.M.'s aggression increased, and he inflicted injuries on a more regular basis. His instructors during the year were Vallandigham and Clarke.¹ On October 26, 1999, while Vallandigham tried to intervene in one of R.M.'s attacks, he shoved her, causing her to fall backwards, hit her head, and lose consciousness. The next day, October 27, R.M. bit Clarke's right breast while she tried "to distract his attention away from the other students." 3 Clerk's Papers (CP) at 459. The bite broke the skin and left a bruise. R.M. remained in Vallandigham and Clarke's class for most of the remainder of the school year. During this time, Vallandigham and Clarke suffered various injuries. R.M. left middle school for Lakes High School in the 2000-01 school year.

Vallandigham and Clarke received L & I benefits for their injuries, but they sought additional damages against Clover Park in a suit filed in Pierce County Superior Court. They claimed, under RCW 51.24.020, that Clover Park deliberately intended their injury. On Clover Park's motion, the trial court granted summary judgment against Vallandigham and Clarke.

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). A question of fact may be determined as a matter of law when reasonable minds could reach but one conclusion. Graff v. Allstate Ins. Co., 113 Wash. App. 799, 802, 54 P.3d 1266 (2002), review denied, 149 Wash.2d 1013, 70 P.3d 964 (2003).

"In a summary judgment motion, the burden is on the moving party to demonstrate that there is no genuine issue as to a material fact and that, as a matter of law, summary judgment is proper." Atherton Condo. Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990). The burden then shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986). We consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

Industrial insurance normally provides the exclusive remedy for an employee injured in the course of his or her employment. Chapter 51.24 RCW; Birklid v. Boeing Co., 127 Wash.2d 853, 855, 904 P.2d 278 (1995). That exclusivity principle, however, is not absolute. RCW 51.24.020 provides that, "[i]f injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker ... shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title."

Throughout much of the Industrial Insurance Act's (IIA) history, "deliberate intention" meant an assault or battery. Birklid, 127 Wash.2d at 861-62, 904 P.2d 278; see, e.g., Perry v. Beverage, 121 Wash. 652, 209 P. 1102, 214 P. 146 (1922). But our Supreme Court broadened the exception's scope in Birklid. There, the court held that "[t]he phrase `deliberate intention' ... means the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge." Birklid, 127 Wash.2d at 865, 904 P.2d 278.

The plaintiffs' deliberate intention suit theorized that the facts, viewed in a light favorable to them, show so many aggressive episodes and injuries by R.M. that Clover Park actually knew that the plaintiffs would certainly be injured. The claim continues that Clover Park willfully disregarded its actual knowledge by failing to take effective remedial measures to prevent the injuries.

I. Actual Knowledge of Certain Injury

Under RCW 51.24.020, disregard of a known risk of harm or carelessness is not sufficient; although evidence of actual intent to injure is unnecessary, there must be evidence that the employer knew of and ignored certain, rather than potential, harm. Birklid, 127 Wash.2d at 865, 904 P.2d 278; Henson v. Crisp, 88 Wash.App. 957, 961, 946 P.2d 1252 (1997), review denied, 135 Wash.2d 1010, 960 P.2d 937 (1998); Goad v. Hambridge, 85 Wash.App. 98, 104, 931 P.2d 200, review denied, 132 Wash.2d 1010, 940 P.2d 654 (1997). Evidence of negligent or even grossly negligent acts that have a substantial certainty of producing injury is insufficient. Folsom v. Burger King, 135 Wash.2d 658, 664-65, 958 P.2d 301 (1998).

Birklid and Baker v. Schatz, 80 Wash.App. 775, 912 P.2d 501, review denied, 129 Wash.2d 1031, 922 P.2d 97 (1996), concerned workers suffering from illnesses related to on-the-job chemical exposure. In both cases, the employer knew that its employees were suffering from the illnesses and that the illnesses would continue unless the exposure stopped. Our Baker decision followed Birklid and held that such knowledge constituted actual knowledge of certain injury. Birklid, 127 Wash.2d at 863, 904 P.2d 278; Baker, 80 Wash.App. at 783, 912 P.2d 501.

Division One recently applied this reasoning to a more topical set of facts. The student in Stenger v. Stanwood Sch. Dist., 95 Wash.App. 802, 977 P.2d 660 (1999), had cognitive and language skills similar to R.M.'s. The school district placed the student in a special education classroom and took various measures in pursuit of an education consistent with IDEA.² But the measures did not prevent the student's frequent, violent outbursts, which resulted in 1,316 to 1,347 injuries to school district staff from 1991 to 1995. Stenger, 95 Wash.App. at 812-13, 977 P.2d 660. These injuries, which were similar in kind to those that R.M. inflicted, spawned six accident reports and three L & I claims. Stenger, 95 Wash.App. at 812-13, 977 P.2d 660. The court concluded that these figures would justify a jury determination that the district had actual knowledge of certain injury. Stenger, 95 Wash.App. at 813, 977 P.2d 660.

With these precedents in mind, we turn now to the instant case. Clover Park first argues that our analysis may consider only those aggressive episodes directed at Vallandigham and Clarke or other staff in deciding whether Clover Park had actual knowledge of certain injury. Clover Park believes that R.M.'s other aggressive episodes and injuries, those aimed at his peers, are not relevant to the actual knowledge of certain injury question. We disagree.

The distinction that Clover Park advocates is a false one. Admittedly, Clover Park's awareness of the plaintiffs' certain injuries would only have been heightened had R.M. directed all of his aggression at Vallandigham and Clarke alone. But our inquiry is not so specific; it must ask, essentially, whether R.M. had a known propensity to injure, and was this propensity so extreme that, from it, Clover Park certainly knew that another injury was forthcoming.

A propensity is "a natural inclination or tendency." WEBSTER'S NEW WORLD DICTIONARY 1139 (2d College Ed.1976). If one has a natural inclination to injure, then that inclination would logically be visited upon more than one or two people. Thus, it is the frequency rather than the object of R.M.'s aggression that logically informs whether Clover Park knew that plaintiffs' injuries were certain. See e.g., Norton v. Payne, 154 Wash. 241, 245, 281 P. 991 (1929) (Parents had duty to control child because "they did know of the habit of their child of striking other children with sticks"; child's propensity did not depend on his aggressive actions toward the person injured) (emphasis added). Thus, each of R.M.'s aggressive episodes influences our inquiry notwithstanding the victim's identity.

As Clover Park moved for summary judgment, we must first consider its burden in deciding whether an...