Leeann Mitchell, Individually, and on Behalf of D.E., Her Minor Child v. Cedar Rapids Community School District

IN THE SUPREME COURT OF IOWA
No. 12–0794
Filed June 21, 2013
LEEANN MITCHELL, Individually, and on Behalf of
D.E., her Minor Child,
Appellees,
vs.
CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT,
Appellant.
Appeal from the Iowa District Court for Linn County, Nancy A.
Baumgartner, Judge.
Mother sued daughter’s school district for damages daughter
sustained in an after-hours, off-campus incident. A jury found the
school district negligent. AFFIRMED.
David L. Baker, Cedar Rapids, and Terry J. Abernathy and
Stephanie L. Hinz of Pickens, Barnes & Abernathy, Cedar Rapids, for
appellant.
Brad J. Brady and Ann E. Brown-Graff of Brady & O’Shea, P.C.,
Cedar Rapids, for appellees.
2
HECHT, Justice.
The mother of a special education student sued the student’s
school district for damages the student sustained in an after-hours, off-
campus sexual assault by another student. A jury found the school
district negligent in failing to adequately supervise the special education
student and awarded damages. We affirm the jury verdict.
I. Factual and Procedural Background.
In the fall of 2007, fourteen-year-old D.E. was a ninth-grade
special education student at Cedar Rapids Community School District’s
Kennedy High School (Kennedy). D.E. has an IQ of 67 and was a Level II
special education student at Kennedy that fall. As a special education
student, D.E. had an Individualized Education Plan (IEP), which had
been created by her mother and a team of education professionals at
Kennedy. An IEP generally aims to make accommodations and provide
support for students with disabilities. D.E.’s IEP revealed no special
behavioral considerations and suggested she was capable of
independently performing daily living skills except money management.
D.E. was rarely, if ever, without direct adult supervision because of her
diminished capacity, a fact established in the trial record but not
expressly mentioned in her IEP.
Kennedy had two Level II special education teachers in the 2007–
2008 school year—Sarah Biedenbach and Sandy Colberg. D.E. was
Ms. Biedenbach’s student in fifth period history and sixth period
language arts classes that year. M.F., a nineteen-year-old twelfth-grade
special education student, was Ms. Biedenbach’s student in other
classes that year.
Ms. Biedenbach had witnessed M.F. and D.E. spending time
together that fall and had observed them engaging in physical contact
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including kissing. Ms. Biedenbach assumed the relationship between
M.F. and D.E. was age-appropriate and could not recall signs indicating
the contact was against D.E.’s will. She also could not recall any history
of M.F. having behavioral problems.
While Ms. Biedenbach testified she made it a habit to speak to her
students about relationships when she observed them, she could not
recall specifically whether she had spoken to M.F. and D.E. about theirs.
Ms. Biedenbach indicated that in addition to her general concern that
any of her students in relationships might engage in sexual activity, she
had specific concerns after witnessing M.F. and D.E. together at school
that they were sexually active, were likely to be together if absent from
class at the same time, and might engage in sex if left unsupervised.
On October 26, 2007, D.E. called her mother, LeeAnn Mitchell,
from school and asked if she could ride the bus after school to her friend
S.K.’s house. This was an unusual request as Mitchell or a grandparent
usually drove D.E. to and from school and D.E. had never previously
ridden the bus to S.K.’s house. D.E. and S.K. represented to Mitchell
that S.K.’s mother would be home that afternoon. Mitchell gave
permission and instructed that D.E. call when she arrived at S.K.’s
home. The school day ended at 2:45 p.m. for D.E.; Mitchell expected she
would receive D.E.’s call around 4 p.m. Although D.E. was not typically
home alone without adult supervision, Mitchell did not attempt to
confirm with S.K.’s mother the accuracy of D.E.’s representation that
supervision would be provided that afternoon.
D.E. and S.K. decided to leave school on October 26 after their fifth
period class and skip sixth period, despite not having permission to leave
school during the school day. They left at approximately 1:45 p.m., just
after the fifth period ended, and met up with M.F. shortly thereafter in
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the school parking lot.1 M.F. did not have a scheduled sixth period class
and was on his way home at that time. M.F. lived with his grandparents
about two and a half miles from Kennedy, and he intended to walk there
that day as he did most days.
Kennedy had a computerized system in place for tracking students’
attendance and absences. Typically, a teacher would document a
student’s absence on a computer in the classroom at the beginning of
each class. If a student left school during the school day, and a parent
had not called to authorize the early departure, the student’s absence
would be recorded as unexcused. In the evening of the same day, an
automated messenger system would place a phone call to the parents of
each student with an unexcused absence and reveal the periods missed
by the student. As Kennedy relied on this automated system for
recording and reporting absences, the school’s policy did not require
teachers to place personal calls alerting parents of their children’s
absences.
Although Kennedy’s policy did not require it, Ms. Biedenbach and
Ms. Colberg typically took additional measures upon discovering a
student’s absence. Recognizing potential safety concerns faced by her
students if absent from school without authorization and unsupervised,
Ms. Colberg would call a student’s parent upon discovering the student
had left the building early without an excuse. Ms. Biedenbach’s
response to an unauthorized absence of a student was slightly different.
She would (1) ask other students in class if they knew the missing
student’s whereabouts, (2) contact the main office to determine if school
1The parties dispute whether this meeting was prearranged. Kennedy suggests
D.E. may have arranged the meeting by giving M.F. a note before the fifth period began.
Mitchell denies any such writing was exchanged.
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personnel had additional information, (3) contact the teacher of the
student’s prior class, and (4) contact campus security providing notice if
the student was missing without excuse or authorization. Both
Ms. Biedenbach and Ms. Colberg typically took these steps not mandated
by the Kennedy policy even if the student’s IEP indicated no specific
behavioral problems and required no specific responsive action in the
event of an unexcused absence.
The absences of D.E. and S.K. from their sixth period classes were
recorded in Kennedy’s computer system that afternoon. The record does
not reveal whether Kennedy personnel took any other action that day in
response to D.E.’s absence. Ms. Biedenbach does not recall placing a
call to the school’s attendance office or inquiring of other students or
school personnel that day about the circumstances of D.E.’s absence.
Mitchell’s expert, Dr. Bainbridge, opined Kennedy should have
taken—and other schools would have taken—additional steps to find
D.E. and prevent her from leaving early that day, including: (1) having a
paraprofessional monitor D.E. when she was not in the classroom,
(2) providing electronic alarms at the nonmain exit doors deterring
unauthorized student departures during passing periods, (3) locating
security officers around the school’s perimeter to question students
leaving campus early during the school day, (4) notifying Mitchell
immediately upon the discovery of D.E.’s unexcused absence, and (5)
promptly alerting the police that D.E. had gone missing.
After they departed the Kennedy campus that afternoon, M.F.,
S.K., and D.E. set out toward M.F.’s grandparents’ house. At some point
along the street fronting Kennedy, they encountered J.I., a former
Kennedy student, who was driving a car. They accepted J.I.’s offer of a
ride to M.F.’s grandparents’ house.
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D.E. and M.F. stayed at his grandparents’ home for approximately
twenty minutes and then walked a few blocks to the home of M.F.’s
friend, V.M., arriving there around 4:00 p.m. V.M. was a tenth-grade
special education student at Kennedy that year. M.F. and D.E. asked
V.M. if they could go inside, but V.M. demurred and instead suggested
they could enter his garage. M.F. and D.E. entered the garage and
remained for about twenty minutes. M.F. raped D.E. in the garage while
V.M. watched from a window and shot at D.E. with a BB gun. M.F. and
D.E. then left V.M.’s around 4:45 p.m. and walked toward S.K.’s house.
At around the time M.F. and D.E. had arrived at V.M.’s, Mitchell
received a call from J.I., informing her that D.E. had left her backpack
with him. J.I. failed to provide Mitchell any details of D.E.’s whereabouts
or any other information. Mitchell, alarmed, drove to S.K.’s house,
arriving there before M.F. and D.E. Having not found D.E. at S.K.’s
house, Mitchell drove toward the Kennedy campus. By the time Mitchell
reached Kennedy, she received a call from M.F. and D.E. revealing they
had arrived at S.K.’s house. Mitchell drove back immediately to retrieve
them, delivered M.F. to his home, and then took D.E. home.
D.E. did not tell Mitchell what had happened that afternoon until
early May 2008. Upon learning the details from D.E., Mitchell took D.E.
to the police department and filed a report. M.F. eventually pled guilty to
sex abuse in the third degree for committing a “sex act” when “the other
person is fourteen or fifteen and the person is four or more years older
than the other person.”
In November 2009, Mitchell sued Kennedy for negligence,
individually and on D.E.’s behalf, alleging Kennedy had breached a duty
of reasonable care in one or more of the following ways: (1) failing to
adequately supervise D.E., (2) failing to timely notify Mitchell of D.E.’s
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unauthorized absence from school, (3) failing to adequately monitor
D.E.’s attendance at school, (4) failing to take appropriate and immediate
action upon the discovery of D.E.’s absence from school, (5) failing to
provide adequate security to prevent special education students from
leaving the school campus without authorization, and (6) failing to
maintain an adequate system of monitoring special education students
during the school day.
A jury trial was held in November 2011. At the close of the
evidence, Kennedy moved for directed verdict on all issues “based on the
fact that the conduct complained of in this case by M.F. was beyond the
scope of the Defendant’s liability.” After some discussion among the
court and counsel about the court’s proposed jury instructions, Kennedy
objected to certain specifications of negligence submitted by the court to
the jury. The jury returned a verdict for D.E., finding $500,000 in
damages and apportioning seventy percent fault to Kennedy and thirty
percent to D.E.
Following the verdict, Kennedy moved for judgment
notwithstanding the verdict, or in the alternative a new trial, asserting
(1) Kennedy did not owe D.E. a duty of care, (2) D.E.’s injuries were
outside the scope of Kennedy’s liability, and (3) Kennedy’s failure to call
the police could not have been a cause in fact of D.E.’s injuries and thus
should not have been submitted to the jury as a specification of
negligence.
The district court denied Kennedy’s posttrial motion. The court’s
ruling concluded in pertinent part: (1) Kennedy failed to raise the duty
issue in its motion for directed verdict and thereby waived error,
(2) whether D.E.’s injuries were within Kennedy’s scope of liability was an
issue for the jury, and (3) Kennedy waived error—again by failing to raise
8
the matter in its motion for directed verdict—on its claim that any failure
to call the police was not a factual cause of D.E.’s injuries.
II. Scope of Review.
The district court’s ruling on Kennedy’s motion for judgment
notwithstanding the verdict that Kennedy waived error on its no-duty
claim is reviewed for errors at law. See Channon v. United Parcel Serv.,
Inc., 629 N.W.2d 835, 859 (Iowa 2001). We review rulings on motions for
directed verdict for correction of errors at law. Iowa R. App. P. 6.907;
Crookham v. Riley, 584 N.W.2d 258, 265 (Iowa 1998). In ruling on the
posttrial motions, we view the evidence in the light most favorable to the
nonmoving party. Van Sickle Constr. Co. v. Wachovia Commercial Mortg.,
Inc., 783 N.W.2d 684, 687 (Iowa 2010).
III. Discussion.
Kennedy raises three issues on appeal, contending: (1) a school
district owes no duty to protect students from a third party outside the
school day, off school grounds, and not during a school activity, (2) the
trial court erred in denying Kennedy’s motions for directed verdict and
judgment notwithstanding the verdict because the harm caused was not
within Kennedy’s scope of liability as a matter of law, and (3) the trial
court erred in including among the submitted specifications of negligence
Kennedy’s failure to call the police.
A. Preservation of the No-Duty Argument. The parties dispute
whether Kennedy’s duty argument was preserved below. Mitchell
contends Kennedy’s motion for directed verdict, the jury instruction
colloquy, and the district court’s ruling on the motion failed to address
the duty issue. Instead, Mitchell asserts, duty was first raised in
Kennedy’s motion for judgment notwithstanding the verdict, and thus
was not preserved for appellate review. Kennedy responds that its
9
motion for directed verdict, while failing to use the word “duty,” was
sufficiently specific to put the district court on notice of the nature of its
protest. Further, Kennedy contends, the jury instruction colloquy
brought the court’s attention to the issue of whether Kennedy owed D.E.
a duty of care with regard to “risks that occurred while plaintiff was not
at school or during school.”
It is well-settled that a party fails to preserve error on new
arguments or theories raised for the first time in a posttrial motion. Field
v. Palmer, 592 N.W.2d 347, 351 (Iowa 1999). A motion for judgment
notwithstanding the verdict must stand on grounds raised in the motion
for directed verdict. Id. at 350. Accordingly, we look to the contents of
Kennedy’s motion for directed verdict in identifying the issues preserved
for our review. See Pavone v. Kirke, 801 N.W.2d 477, 487 (Iowa 2011).
Although our error preservation rules are not designed to be
hypertechnical, Griffin Pipe Prods. Co. v. Bd. of Review, 789 N.W.2d 769,
772 (Iowa 2010), we require that the nature of any alleged error be timely
brought to the attention of the district court, Summy v. City of Des
Moines, 708 N.W.2d 333, 338 (Iowa 2006). Further, claimed errors must
be raised with some specificity in a directed verdict motion. Id. General
averments in a motion for directed verdict will not typically maintain
particular issues for the district court’s further consideration in ruling on
motions for judgment notwithstanding the verdict. See Ragee v. Archbold
Ladder Co., 471 N.W.2d 794, 797–98 (Iowa 1991).
Here, Kennedy’s motion for directed verdict stated in its entirety:
[T]he Defendant would move for a directed verdict on
all the issues in this case based on the fact the conduct
complained of in this case by [M.F.] was beyond the scope of
the Defendant’s liability. The evidence in this case has
shown that this incident occurred off school grounds, after
school hours, did not in any way, shape, or form involve an
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employee of the Cedar Rapids Community School District;
was certainly not the type of incident that could be
reasonably foreseen as to logically follow from the fact that a
student might skip school.
As a result, under the Restatement (Third) of Torts, the
Thompson v. Kaczinski case, Royal Indemnity and Hill v.
Damm, we believe the Defendant is entitled to a directed
verdict in its favor. Thank you.
As noted, the district court denied the motion, finding substantial
evidence supported each element of Mitchell’s claim. Further, the court
explained,
[R]easonable minds could differ on the outcome, and I don’t
believe that the scope of liability as defined by the cases cited
by [Kennedy] and in the jury instructions and under the
Restatement (Third) warrant or demand a directed verdict in
this case.
After the jury returned its verdict for D.E., Kennedy moved for
judgment notwithstanding the verdict on several grounds. Among them
was the argument that “no duty exists because the harm did not occur at
school, during school hours or at a school-sponsored event.” The district
court denied the motion, explaining the question whether Kennedy owed
D.E. a duty of care was not raised in Kennedy’s motion for directed
verdict and could not, therefore, be considered at the posttrial stage.
We cannot conclude—from the nature of Kennedy’s directed verdict
motion or from the nature of the district court’s ruling on the motion—
that the no-duty argument advanced on appeal was adequately brought
to the district court’s attention. Kennedy moved generally for a directed
verdict on “all issues” and then advanced only its scope-of-liability
argument. The details offered in the motion’s next sentence are fairly
understood as facts supporting Kennedy’s scope-of-liability argument,
particularly given their position immediately following the mention of
scope of liability. The motion’s reference to foreseeability is not helpful to
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Kennedy’s preservation argument, as we have previously explained
foreseeability may play a role in breach and scope-of-liability
determinations, but it no longer has a place in duty determinations. See
Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009).
We further conclude Kennedy’s citation of Thompson, Royal
Indemnity, and Hill in the motion for directed verdict cannot be said to
have highlighted the duty issue for the district court. Neither Royal
Indemnity nor Hill considered a no-duty claim. See Royal Indem. Co. v.
Factory Mut. Ins. Co., 786 N.W.2d 839, 849–52 (examining insurer’s
scope of liability); Hill v. Damm, 804 N.W.2d 95, 99–104 (Iowa Ct. App.
2011) (examining bus company’s negligence, causal role, and scope of
liability). In Thompson, we examined a duty determination, but in the
process we established that we ordinarily recognize a general duty of
reasonable care without consideration of foreseeability, absent
exceptional circumstances. See Thompson, 774 N.W.2d at 834–35.
Finding the defendant in that case owed a duty (after explaining that in
most cases involving physical harm, courts “ ‘need not concern
themselves with the existence or content of [the] ordinary duty’ ” to
exercise reasonable care), we moved on to a discussion of scope of
liability. Id. at 835, 839 (quoting Restatement (Third) of Torts: Liability
for Physical and Emotional Harm § 6 cmt. f, at 69 (2010) [hereinafter
Restatement (Third)]). The record here reveals no discussion during the
brief consideration of the motion for directed verdict of the relevance of
Thompson, Royal Indemnity, or Hill to a subject other than scope of
liability—perhaps because it did not appear that the existence of
Kennedy’s duty was in dispute. Indeed, the district court’s ruling on the
directed verdict motion suggested it properly understood Kennedy’s
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arguments on the facts and the law were advanced in support of its
scope-of-liability argument.
In contending the directed verdict motion was not limited to the
scope-of-liability issue, Kennedy relies heavily on a comment to the
Restatement (Third) section addressing affirmative duties and describing
a school’s duty as “applicable to risks that occur while the student is at
school or otherwise engaged in school activities.”2 See Restatement
(Third) § 40 cmt. l, at 45 (2012). A court aware of this principle set forth
in section 40, Kennedy contends, would fairly infer from the directed
verdict motion’s language “off school grounds, after school hours” that
the motion was asserting the affirmative duty limitation noted in
comment l. Further, Kennedy asserts, the jury instruction colloquy
between the parties and the district court directed the court’s attention
to comment l and adequately alerted the district court to the duty
question now asserted on appeal.
We find Kennedy’s preservation argument unpersuasive. When
Kennedy’s counsel forwarded proposed jury instructions to the court and
opposing counsel a few days before trial, he expressly conceded Kennedy
2Kennedy has also raised on appeal an argument that specific language from
section 19 of the Restatement (Third) suggests the issues “of duty, foreseeability and
scope of liability” may be intertwined in cases of affirmative duties like the one at issue
here. But see Restatement (Third) § 19 cmt. c, at 216 (explaining convergence of breach
and scope of liability). The record does not reveal, however, that this notion derived
from section 19 was raised below, that the district court was ever made aware of the
specific language of comment c, or that the court considered section 19 outside the
context of the discussion of foreseeability and scope of liability. We also find no
evidence in the record that Kennedy alerted the district court to the argument it presses
on appeal: that its argument directed expressly at the scope-of-liability issue was so
intertwined with the issue of whether an affirmative duty was owed as to alert the
district court to both issues. The relationship between affirmative duty and scope-of-
liability issues is explicitly referenced in comment f to the Restatement (Third) section
on scope of liability, but we find no indication that the comment was brought to the
district court’s attention in this case. See Restatement (Third) § 29 cmt. f, at 500–01.
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had a duty of reasonable care.3 During the jury instruction colloquy at
trial, he took the same position, explaining “[the school] must exercise
the same standard of care towards [its students] that a parent of
ordinary prudence would observe in comparable circumstances,” and
“[t]he school’s duty includes the duty of reasonable care to the student
with regard to risks that arise within the scope of the school–student
relationship.” Kennedy’s counsel’s reference to comment l came later in
the jury instruction colloquy, when he expressed concerns about the
instructions’ statement of the risks for which Kennedy might be liable.
At that point, he suggested comment l was relevant to “the other
instructions on, you know, the scope of liability.” Offering no indication
that comment l might support a determination that Kennedy owed no
duty in this case, counsel relied instead on the comment as support for
its effort to persuade the district court that the scope of the instructions
on foreseeability and reasonable care should be narrowed. We are not
persuaded on this record that the district court was adequately alerted to
the duty issue raised by Kennedy on appeal. See Field, 592 N.W.2d at
351–52 (expressing reservation that objection to a jury instruction could
ever substitute for proper motion for directed verdict and explaining any
objections must specify the objectionable matter and the grounds for
objection).
Finally, while we strive to avoid hypertechnicality in our error
preservation jurisprudence, we note the cases cited by Kennedy are
unavailing. We found an objection preserved error in Griffin, a case
3In his email forwarding the instructions to the court and opposing counsel,
Kennedy’s counsel explained “[a]s I now understand it, since the Supreme Court’s
decision in Thompson adopting Restatement Third, the focus is no longer on defining
‘duty.’ Everyone has a duty of reasonable care and it is for the jury to determine
whether that duty has been breached.”
14
involving an objection to an increased tax assessment for a building, in
large part because the objection raised all the information available to
the appellant at the time. Griffin Pipe Prods. Co., 789 N.W.2d at 772
(explaining tax assessor had never before used the word “building” to
include machinery and equipment and preserving appellant’s challenge
to taxability of equipment). Only later in the administrative process did
the basis for the challenged assessment, and thus, the specific ground
for the appellant’s objection, become clear. Id. Kennedy suffered no
comparable information deficit curtailing its opportunity to assert a
specific duty-based challenge in the motion for directed verdict in this
case.
Our ruling in Summy is no more helpful to Kennedy on this point.
There, the appellee had orally raised its specific objection to the
impanelling of a jury before the jury was sworn, and thus had effectively
alerted the district court to the alleged error at a time when corrective
action could properly be taken. See Summy, 708 N.W.2d at 338. Here,
by contrast, the record reveals Kennedy failed to specifically raise the
duty issue until the motion for judgment notwithstanding the verdict.
Mitchell, not aware duty was in issue, never had an opportunity to be
heard on the issue before the verdict, and neither Mitchell nor the
district court had any opportunity to take corrective measures or pursue
alternatives. See Lee v. State, 815 N.W.2d 731, 739 (Iowa 2012).
Accordingly, we conclude Kennedy failed to preserve its duty
argument for appellate review.
B. Scope of Liability. Kennedy contends the harm to D.E. was
outside Kennedy’s scope of liability as a matter of law because
(1) Kennedy’s conduct could not fairly be said to have been a but-for
15
cause of the harm,4 and (2) Kennedy’s alleged failure to adequately
supervise D.E. or report her unauthorized absence up the school’s chain
of command did not make it any more likely that the specific harm
suffered by D.E. would occur. Mitchell counters that (1) Kennedy’s
apparent factual causation argument, framed as a scope-of-liability
argument, was not adequately preserved for appellate review, and (2) the
jury properly found the harm to D.E. was within Kennedy’s scope of
liability.
As a threshold matter, we are not persuaded that Kennedy’s but-
for factual causation argument was adequately raised below. The motion
for directed verdict, as set forth above, presented a scope-of-liability
argument based on several cited cases. Although the cited cases—Hill
and Royal Indemnity—included some analysis of factual causation,
Kennedy failed to urge a factual causation deficit in the plaintiff’s case at
the directed verdict stage or during the jury instruction colloquy.
The motion for directed verdict and the argument presented to the
district court in support of it made no effort to explain how, if at all, the
cited cases supported a directed verdict on factual causation grounds.
We think it likely the district court inferred—from Kennedy’s citation of
the cases in proximity to the discussion of scope of liability and the lack
4The “but-for” test Kennedy raises is tort law’s familiar factual causation test:
“an act is a factual cause of an outcome if, in the absence of the act, the outcome would
not have occurred.” Restatement (Third) § 26 cmt. b, at 347. We have previously
explained that factual cause and scope-of-liability determinations require separate
inquiries. See Thompson, 774 N.W.2d at 836–38. The Restatement (Third) confirms
that scope-of-liability and factual causation inquiries are distinct inquiries, and that the
concept of scope of liability, previously referred to as proximate causation, is neither
about proximity nor causation as those words are commonly understood. See
Restatement (Third) § 26 Reporters’ Note cmt. a, at 357. Accordingly, the Restatement
(Third) treats factual causation and scope of liability as separate concepts in separate
chapters. Id.
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of any clarifying or alternative explanation of a connection to factual
causation—that the authorities were cited in support for their relevance
to the scope-of-liability argument. As explained above in our discussion
of preservation of the duty issue, we think a fair reading of the motion for
directed verdict, the record made in support of the motion, and the jury
instruction colloquy consistently indicate Kennedy’s focus was upon the
scope of its liability. Kennedy cited Thompson, Royal Indemnity, and Hill
in support of its scope-of-liability argument at both stages.5 Accordingly,
we conclude Kennedy did not preserve its factual causation argument
below and we decline to address its merits here.
Turning to the remaining scope-of-liability inquiry, we have
explained that tort law will not always impose liability on an actor for all
harm factually caused by an actor’s tortious conduct. Thompson, 774
N.W.2d at 837. Instead, an actor’s liability is limited to the physical
harms that result from the risks that make an actor’s conduct tortious.
Id. at 838; see also Hoyt v. Gutterz Bowl & Lounge, LLC, 829 N.W.2d 772,
780 (Iowa 2013). We employ the scope-of-liability analysis to avoid
unjustified liability and to confine liability in a way consistent with the
reasons for holding an actor liable in the first place. See Hoyt, 829
N.W.2d at 781. Scope-of-liability determinations are fact-intensive,
requiring consideration of the risks that make an actor’s conduct tortious
and a determination of whether the harm at issue is a result of any of
those risks. See Thompson, 774 N.W.2d at 838.
5The record reveals the school district made objections during the colloquy other
than its scope-of-liability objections. Those objections, however, were directed to
proposed negligence specifications and were made on the grounds of insufficient
evidence and unnecessary repetition. The discussion on negligence specifications made
no mention of or reference to factual causation.
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Section 29 of the Restatement (Third) outlines the scope-of-liability
analytical framework as follows:
Central to the limitation on liability of this Section is the idea
that an actor should be held liable only for harm that was
among the potential harms—the risks—that made the actor’s
conduct tortious. . . .
Thus, the jury should be told that, in deciding whether
the plaintiff’s harm is within the scope of liability, it should
go back to the reasons for finding the defendant engaged in
negligent or other tortious conduct. If the harms risked by
that tortious conduct include the general sort of harm
suffered by the plaintiff, the defendant is subject to liability
for the plaintiff’s harm. When defendants move for a
determination that the plaintiff’s harm is beyond the scope of
liability as a matter of law, courts must initially consider all
of the range of harms risked by the defendant’s conduct that
the jury could find as the basis for determining that conduct
tortious. Then, the court can compare the plaintiff’s harm
with the range of harms risked by the defendant to
determine whether a reasonable jury might find the former
among the latter.
Restatement (Third) § 29 cmt. d, at 495–96. Tortious conduct may be
wrongful because of various risks to various classes of persons, explains
section 29, and while some risks may be more prominent than others, all
are relevant in determining whether harm is within the appropriate scope
of liability for the actor’s conduct. Id. at 497. The context in which the
actor’s conduct is tortious is paramount, and an appropriate
examination of the context includes the facts establishing the risks
existing at the time of the conduct and the manner in which the conduct
was deficient. Id. cmt. h, at 502. Prior incidents and other facts
evidencing risks may make certain risks foreseeable that otherwise were
not, thereby changing the scope analysis. Id. cmt. d, at 499.
Section 30, restating section 29 slightly, expands upon the limiting
principle for scope-of-liability determinations, explaining that “[a]n actor
is not liable for harm when the tortious aspect of the actor’s conduct was
18
of a type that does not generally increase the risk of that harm.” See id.
§ 30, at 542. The critical inquiry, section 30 suggests, is
whether the risks posed by the tortious conduct of the actor
would, if repeated, make it more likely that harm such as
that suffered by the other person would also occur. If the
harm is no more likely to occur than if the actor desisted
from the tortious conduct, the harm is not within the scope
of the actor’s liability . . . .
Id. cmt. a, at 543. Section 40’s description of Kennedy’s affirmative duty
provides an additional limiting principle for our analysis, explaining that
the duty is only applicable to risks arising while a student is at school or
otherwise engaged in school activities. Id. § 40 cmt. l, at 45.
Section 34 includes in the scope-of-liability inquiry intervening
acts that may be a source of risks making an actor’s conduct tortious.
“In some instances,” section 34 explains, “the risks posed by even an
extraordinary force of nature or by a culpable . . . human act may be
precisely the risks that render tortious an actor’s failure to adopt
adequate precautions.” See id. § 34 cmt. d, at 572. Recognizing section
19 addresses the basis for finding negligence (i.e., that a party has
satisfactorily demonstrated the element of breach) when there is a
foreseeable risk of improper or criminal conduct by another, section 34
explains that “[w]hen an actor is found negligent precisely because of the
failure to adopt adequate precaution against the risk of harm created by
another’s acts or omissions, there is no scope-of-liability limitation on
the actor’s liability.” Id.
Here, the parties offer competing characterizations of the harm
suffered by D.E. Kennedy suggests the harm for which recovery was
sought was “M.F.’s having sex with D.E.” while D.E. was truant.
Mitchell, by contrast, suggests the harm was the rape of D.E.—a special
education student functioning at a third-grade level, known to be
particularly susceptible to persuasion, and under consistent
19
supervision—by an adult special education student whom D.E.’s teacher
had witnessed being amorous with D.E. We have previously explained
we cannot provide any bright-line rule to determine the appropriate level
of generality or specificity to employ in characterizing the range of harms
relevant to scope-of-liability determinations. Hoyt, 829 N.W.2d at 781.
Instead, where contending plausible characterizations of the range of
reasonably foreseeable harms arising from the defendant’s conduct lead
to different outcomes and require line-drawing, we have seen fit to leave
the case to the judgment and common sense of the fact finder. Id.
On these facts, we conclude there was sufficient evidence to
generate a jury question on the issue of whether the harm D.E. suffered
was among the potential harms that made Kennedy’s conduct tortious.
The parties appear to agree that students in the age range of D.E. and
M.F. will often engage in sexual activity and will go to some length to
avoid supervision in pursuing it. Indeed, Kennedy’s argument that D.E.
orchestrated a plan to be alone with M.F. on the day in question appears
to depend on the factual concession that she aimed to avoid supervision,
which might have prevented the encounter. While Kennedy contends
D.E.’s skipping her last class of the day made it—as a matter of law—no
more likely she would have a sexual encounter with M.F. later that day
than had she been supervised through the end of the school day, we are
not persuaded on this record. D.E. was a Level II special education
student functioning at approximately a third-grade level and was nearly
always under adult supervision. The Level II special education teachers
at Kennedy typically undertook substantial precautions upon discovering
absences from class, including consulting other teachers, the front office,
and often even the students’ parents, in large part because of safety
concerns about the students. Some evidence in the record tended to
20
prove D.E. was particularly trusting, perhaps excessively so, and may
have often been unable to distinguish safe situations from unsafe
situations. In addition, Ms. Biedenbach had observed M.F. and D.E.
interact with physical intimacy on various occasions that fall.
Notwithstanding all these facts, Kennedy’s response to D.E.’s
absence from sixth period that day was apparently limited to
Ms. Biedenbach’s recording of the absence in Kennedy’s automated
computer system. That system provided Mitchell with a notification of
D.E.’s absence sometime in the evening, several hours after the harm
had occurred. We think the record was sufficient to engender a jury
question as to whether the failure to supervise D.E. in any of the ways
described in Mitchell’s expert’s testimony and in the submitted
specifications of negligence increased the risk she would leave the
campus unsupervised with M.F. and suffer the harm found by the jury in
this case.6
Further, we reject Kennedy’s argument that the location of the off-
campus assault and the time of its occurrence after school hours are
dispositive of the scope-of-liability issue as a matter of law. Section 40’s
limitation of Kennedy’s affirmative duty of reasonable care to risks
occurring “while the student is at school or otherwise engaged in school
activities” is silent as to the appropriate scope of liability for risks arising
at school but materializing at some later time. The duty and scope-of-
6We do not mean to suggest every intervening act and attendant harm, if
foreseeable under a given set of circumstances, might fall within an actor’s scope of
liability if the harm is among the risks making the actor’s conduct tortious. Instead we
think questions regarding the foreseeability, culpability, and significance of an
intervening act all bear on whether the harm is within the scope of liability. Consistent
with the goals of the drafters of the Restatement (Third), however, we believe these
determinations are typically best left to juries, as was the case here. See Restatement
(Third) § 34 cmt. e, at 572–74.
21
liability inquiries are different inquiries. As we have already noted,
Kennedy’s duty-based challenge was not asserted in the motion for
directed verdict and was not preserved for appeal.
We conclude the evidence was sufficient to support the jury’s
findings that Kennedy acted unreasonably and that its negligence
increased the risk of D.E.’s harm. Those findings are consistent with the
Restatement’s scope-of-liability analytical framework and with the
caselaw from jurisdictions that have found schools may be liable for
injuries to students occurring after school hours and off school grounds.
See, e.g., Perna v. Conejo Valley Unified Sch. Dist., 192 Cal. Rptr. 10, 12
(Ct. App. 1983) (explaining school district may be held liable for injuries
suffered by student off school premises and after school hours when
those injuries are a result of school’s negligence while student is on
school premises); Doe v. Escambia Cnty. Sch. Bd., 599 So. 2d 226, 228
(Fla. Dist. Ct. App. 1992) (reversing summary judgment for school board;
finding fact question remained regarding whether school district had
breached its duty to adequately supervise mentally disabled fourteen-
year-old who left school grounds during lunch period with male and was
later sexually assaulted in private home); Gary v. Meche, 626 So. 2d 901,
905 (La. Ct. App. 1993) (finding liability for after-hours, off-campus
injury, holding school’s duty to supervise children requires “a policy to
insure that young children, such as [a six-year-old], do not leave the
school unattended”); Sutton v. Duplessis, 584 So. 2d 362, 366 (La. Ct.
App. 1991) (explaining school authorities should have foreseen that six-
year-old student might disobey instructions not to leave office, and thus
school board was liable for injuries sustained by student, who left school
grounds after school, darted out into street and ran into side of
automobile, where student had been waiting for his mother to pick him
22
up in office with secretary); Jerkins v. Anderson, 922 A.2d 1279, 1281
(N.J. 2007) (explaining school may be liable for postdismissal, off-campus
injury and holding school’s duty of reasonable supervision requires
school to create reasonable dismissal policies to protect students as the
school day ends).
We acknowledge that other jurisdictions, using the old duty
framework of the Restatement (Second), have rejected the possibility of
liability for injuries occurring after hours and off school grounds after
concluding the injuries were unforeseeable. See, e.g., Kazanjian v. Sch.
Bd., 967 So. 2d 259, 268 (Fla. Dist. Ct. App. 2007) (applying
foreseeability test and concluding no duty existed because horrific car
crashes are exceedingly rare); Stoddart v. Pocatello Sch. Dist. #25, 239
P.3d 784, 791–92 (Idaho 2010) (raising argument that proper
investigation during school hours would have prevented after-hours
death, but rejecting care standard requiring “indefinite monitoring” and
finding no duty as result of lack of foreseeability of violent student
criminal activity); Beshears v. Unified Sch. Dist. No. 305, 930 P.2d 1376,
1383 (Kan. 1997) (finding no duty on foreseeability grounds because
school had no evidence of a risk of fight); Edson v. Barre Supervisory
Union #61, 933 A.2d 200, 205–06 (Vt. 2007) (finding no duty on
foreseeability grounds because school lacked specific notice of impending
crime). These authorities, however, are inapposite for several reasons.
First, as we have previously explained, we have adopted the duty
principles of the Restatement (Third) and will not consider foreseeability,
or lack thereof, in making duty determinations. See Hoyt, 829 N.W.2d at
776–77; Thompson, 774 N.W.2d at 835. Second, as we have already
concluded, the duty issue was never raised below and therefore was not
preserved for our review. Finally, we recognize, consistent with the
23
framework of the Restatement (Third), courts may use either duty or
scope-of-liability determinations to limit liability in negligence cases. See
Restatement (Third) § 29 cmt. f, at 500. We think it important to note,
however, that where suggested limits on liability
require careful attention to the specific facts of a case, and
difficult, often amorphous evaluative judgments for which
modest differences in the factual circumstances may change
the outcome, scope of liability is a more flexible and
preferable device for placing limits on liability.
Id. at 501. Use of scope of liability in this context maintains the proper
role of the jury in tort cases. Id. We therefore cannot conclude the
authorities making no-duty determinations on foreseeability grounds are
persuasive here.7
Accordingly, we find no error in the district court’s decision to
submit the scope-of-liability issue to the jury.
C. Submission of the Challenged Negligence Specification.
Kennedy’s last contention on appeal is that the district court erred in
submitting certain specifications of negligence to the jury. In particular,
Kennedy contends the district court erred in instructing the jury it could
find a breach of duty if Kennedy failed “to look for [D.E.], contact the
office, call the police, or notify school security when she was absent from
class.” The submission of these specifications constituted error,
Kennedy contends on appeal, because the specifications were either
“outside the duty of the school” or “could not have caused the harm as a
matter of law.” Mitchell counters that Kennedy failed to preserve this
7Based on the fact-specific nature of scope-of-liability determinations, we also
think it imprudent to speculate as to whether, had the cases finding no school liability
been resolved on scope of liability instead of duty, they would have: (1) reached the
same result, or (2) offered any general rule appropriate for our application here.
24
argument in the district court and further, that sufficient evidence
supported submission of each of the specifications.
We have previously explained that objections to jury instructions
must specify the matter objected to and the grounds for objection. See
Moser v. Stallings, 387 N.W.2d 599, 603–04 (Iowa 1986); see also Iowa R.
Civ. P. 1.924 (“[A]ll objections to giving or failing to give any instruction
must be made . . . specifying the matter objected to and on what
grounds.”). Objections must be specific enough to put the trial court on
notice of the basis of the complaint so the court may appropriately
correct any errors before placing the case in the hands of the jury.
Moser, 387 N.W.2d at 604. The only grounds we consider on appeal are
those that were sufficiently specified in the objections below. Id.
We have also said a district court must refuse to instruct the jury
on issues having no substantial evidentiary support in the record.
Greenwood v. Mitchell, 621 N.W.2d 200, 204 (Iowa 2001). Substantial
evidence is evidence that a reasonable person would find sufficient to
reach a given conclusion. Id. In evaluating the sufficiency of evidence
supporting an issue, we construe the evidence in the light most favorable
to the party urging submission. Id. at 205.
Kennedy initially objected to the proposed negligence specifications
on two grounds during the jury instruction colloquy: (1) that they were
repetitious and unduly emphasized Mitchell’s claim, and (2) that there
was insufficient evidence to support a finding that Ms. Biedenbach failed
to contact the main office upon discovering D.E.’s absence from class.
The district court revised the specifications slightly in response to
Kennedy’s “repetitiveness” argument and concluded there was sufficient
evidence to give each of the revised specifications to the jury.
25
Kennedy then immediately raised a new objection challenging the
proposed “inclusion of a duty to call the police” among the specifications
of negligence. Explaining that whether Kennedy’s alleged failure to call
the police was “ultimately negligent” was a jury question, the district
court clearly understood Kennedy’s objection as a challenge to the
sufficiency of the evidence and rejected it. We conclude the mere
mention of “duty” in objecting to a specification of negligence was
manifestly insufficient to alert the court to the matters (factual causation
and duty) that went unmentioned in Kennedy’s motion for directed
verdict. Our conclusion is fortified by the fact that the specifications of
negligence to which the vague objection was directed were relevant to the
issue of negligence (breach of duty)—not to the existence of the duty or to
factual causation.
We find no error in the district court’s determination that sufficient
evidence supported the submission of each of the challenged
specifications. A reasonable juror could find on this record that Kennedy
failed to take any of the specified measures after D.E. had gone missing
from school on the day in question. It was for the jury to decide as a
matter of fact whether Kennedy in fact took those measures, and
whether if it did not, it acted unreasonably. Accordingly, we find no error
on this issue.
IV. Conclusion.
The district court correctly denied Kennedy’s motions for directed
verdict and judgment notwithstanding the verdict. Kennedy failed to
preserve error in the district court on the duty and factual causation
issues advanced raised on appeal, and we therefore do not decide them.
Finding no error in the district court’s submission of the scope-of-liability
26
issue and the specifications of negligence, we affirm the judgment in
favor of the plaintiff–appellee.
AFFIRMED.
All justices concur except Cady, C.J., who concurs specially and
Waterman and Mansfield, JJ., who dissent.
27
#12–0794, Mitchell v. Cedar Rapids Cmty. Sch. Dist.
CADY, Chief Justice (concurring specially).
I concur in the result reached by the majority, but write separately
to express a different analysis. The school district preserved error at trial
on the issue that it now argues on appeal, but those arguments do not
support a new trial.
We have realigned our analysis of negligence claims consistent
with the Restatement (Third) of Torts: Liability for Physical and
Emotional Harm. Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009).
Now, we proceed with an analytical model that largely accepts the
proposition that a defendant has a duty of reasonable care when acting
in a way that creates a risk of physical harm, and the primary legal
analysis of a tort claim turns to the other elements of negligence.
Importantly, any challenge to the existence of the duty element is left for
the court to decide based on policy arguments and countervailing
principles that might exempt people from a duty. Id. at 834–35. Yet, the
foreseeability of harm in a specific case is not considered in such an
analysis. In other words, courts no longer use the lack of foreseeability
of harm in a specific case to reject the imposition of a duty of care.
Instead, the lack of foreseeability of harm is initially addressed by the
jury under the determination of the breach element of the tort. If harm
was not reasonably foreseeable, no breach of duty can occur.
Additionally, the concept of foreseeability is injected into the tort
analysis when considering the element of causation. However, we
adopted new labels to address the traditional factual cause and
proximate or legal cause concepts of the causation element. Now,
causation is addressed under the rubric of factual cause and scope of
28
liability. Factual cause follows the substantial-factor test, and scope of
liability serves to limit the liability of a defendant to physical harm that
resulted from the risks that made the conduct negligent in the first place.
Id. at 837–38. This was the same type of analysis accomplished by our
former proximate-causation analysis. Thus, the concept of foreseeability
continues to play an important role in the analysis and excludes liability
under the causation element when the risk of harm was not foreseeable
at the time of the defendant’s conduct. Id. at 839.
The argument by the school district that it could not be liable
because the harm occurred after school and outside school property is a
duty argument. It asks the court to draw a line where its duty ends.
This was the argument made at trial and on appeal by the school district.
Additionally, the argument that the incident was not foreseeable is both
a claim of no breach of duty and a claim that any breach did not cause
the harm. The school argued the incident was beyond the scope of
liability and touched on the idea that the particulars of negligence were
not a substantial factor in producing the harm.
There is no question about the competing arguments made by the
parties in this case. The parties presented their arguments, and the trial
court had the responsibility to plug those arguments into the proper legal
analysis to determine their merits. Consequently, error was preserved.
Notwithstanding, the school district only challenged, at trial and
on appeal, the existence of a duty to protect students from harm after
school hours and after students leave the school grounds (or are no
longer engaged in an after-school activity). Yet, the challenge did not
target the more specific legal duty claimed by the plaintiff that the school
should have notified her that her daughter left school early, among other
specific propositions. Thus, this specific duty became the law of the case
29
and permitted the jury to properly consider whether the duty was
breached and caused harm.
I agree a school normally is not responsible for harm to students
that occurs after school hours and after the students have left the school
property. Once these circumstances exist, the school has relinquished
control of the student back to the parents or guardians. Importantly, the
rule can be expressed as a general guide because negligent conduct
normally occurs close in time to the resulting harm. Thus, once
students have left school for the day, any negligence of the school is
normally no longer actionable. Yet, when negligent conduct continues to
expose students to physical harm after school, the general guide of no
liability does not apply. The breach of the duty to notify can create a risk
of harm that does not end with the end of the school day.
If a high school has a legal duty to notify parents when a child
skips out of school, the school can be responsible for the type of harm
that occurred in this case because notice is what alerts parents that the
school is no longer in control of the student and informs parents they
need to resume supervision. The lack of notice deprives parents of the
opportunity to resume supervision before harm occurs. Furthermore, in
this case, there was evidence the plaintiff did promptly attempt to regain
supervision when she learned her child was missing. This evidence
impacts the analysis of causation because it reveals the plaintiff may
have acted to prevent the harm if notified by the school.
The school principal did testify that parental notification when a
student skips the last hour of school would be difficult and impractical
for a high school to do. Yet, for the purposes of the case, the school had
a duty to notify under the law of the case, and this testimony accordingly
only went to the question of whether the duty was breached. The jury
30
was free to reject the testimony. The elements of breach and causation
are fact intensive, and the jury was permitted to reach the verdict it
returned.
While the school district properly argued for a legal rule that would
limit its liability once school ends, that rule would not necessarily
exclude liability for any negligence before the end of the school day that
continued to present a risk of harm after school. Because the district
court was not presented with the opportunity to determine if a high
school has a specific duty to notify parents when a student skips the last
hour of school, I concur in the result reached by the majority.
31
#12–0294, Mitchell v. Cedar Rapids Cmty. Sch. Dist.
WATERMAN, Justice (dissenting).
I respectfully dissent. The majority opinion is an example of the
aphorism that bad facts can make bad law. The mental disability of the
fourteen-year-old special education student–victim makes this a harder
case. Yet, the school district’s tangential role in the events leading to her
sexual assault by another student after school hours off campus is too
attenuated to support liability under traditional tort law or the
Restatement (Third) of Torts. This court should not extend liability to her
teachers or the school district under the facts of this case: D.E. skipped
her last class, lied to her mother about her after-school plans, found her
boyfriend, willingly accompanied him to a convenience store, and joined
him inside another student’s parents’ private garage where the sexual
assault occurred. The majority’s unprecedented expansion of school-
district liability for injuries well outside school activities is unwarranted
and lacks any workable limiting principle.
A saving grace today is the majority’s determination that this
school district failed to preserve error on the no-duty issue. This leaves
the door open in future cases for school districts to argue that, as a
matter of law, their duty of care is limited “to risks that occur while the
student is at school or otherwise engaged in school activities.”
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 40 cmt. l, at 45 (2012) [hereinafter Restatement (Third)]. I believe this
bright-line rule precludes recovery against the school district here under
the no-duty rule recognized in section 7(b) of the Restatement (Third).
See McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 374 (Iowa
2012) (noting section 7(a)’s general duty of care is “subject to ‘an
articulated countervailing principle or policy’ ” in section 7(b), which
32
“ ‘may be reflected in longstanding precedent’ ” (quoting Restatement
(Third) § 7(b) cmt. a, at 77–78 (2010))).8
The majority cites no case from Iowa or elsewhere holding that a
school district can be held liable when a student who skips school ends
up being sexually abused by a fellow student away from the school
premises and after the end of the school day. I disagree with the
majority’s determination that the school district failed to preserve error
on the no-duty question in its motion for directed verdict, although the
question is close. Defense counsel argued the facts supporting a no-duty
ruling and argued there was no liability as a matter of law. But he failed
to use the word “duty” and did not cite section 7(b) or comment l to
section 40 of the Restatement (Third) in his directed verdict motion.
Nevertheless, he clearly intended to include a no-duty ground. I would
be more forgiving as to the specificity required to avoid an involuntary
waiver on the interrelated issues of duty, breach, causation, and scope of
liability. After all, our court only recently adopted the Restatement
(Third) scope-of-liability approach, when neither side raised or briefed the
issue, in Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009). So why
not reach the no-duty issue today when it is fully briefed by these
parties? In any event, I would hold that the school district’s motion for
8The decision of our court of appeals reversing a directed verdict for the
defendant in Hill v. Damm, 804 N.W.2d 95 (Iowa Ct. App. 2011), is consistent with this
bright-line rule. There, a school bus driver dropped a thirteen-year-old student off at
the wrong stop despite specific, credible warnings from her mother to avoid that stop to
prevent contact with a pedophiliac neighbor. Id. at 96–97. The mistake by the driver
predictably put the child directly into harm’s way—she was abducted by the neighbor at
that stop and later murdered. Id. at 97. A school district’s duty of care extends to
transporting students to a safe exit from a school bus. See Burton v. Des Moines Metro.
Transit Auth., 530 N.W.2d 696, 700 (Iowa 1995). By contrast, the victim in this case
was not mistakenly transported by school bus to a foreseeably dangerous location;
rather, she skipped school on her own without any notice to the school of a reasonably
foreseeable third-party threat to her safety.
33
directed verdict based upon scope of liability—what we used to call
proximate cause—should have been granted and that there was
insufficient evidence of negligence to submit the case to the jury.
The victim’s special education status does not get this case to the
jury. Federal law requires that special education students be educated
in the “[l]east restrictive environment” and “[t]o the maximum extent
appropriate . . . with children who are not disabled.” Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1412(a)(5) (2006). See
generally Ralph D. Mawdsley, Standard of Care for Students with
Disabilities: The Intersection of Liability Under the IDEA and Tort Theories,
2010 B.Y.U. Educ. & L.J. 359 (2010). The idea is to mainstream the
student. That was the approach taken with D.E. by the school district.
A team of educators and D.E.’s mother had developed an Individualized
Education Program (IEP) to accommodate her specific needs. See 20
U.S.C. § 1414. Special education students are subject to the same
school procedures as any other student unless the IEP provides
differently. D.E.’s IEP did not require any escort for her between classes
or leaving school. D.E.’s IEP subjected her to the same attendance
requirements as other students and required no special notification to
her mother if she missed a class. D.E.’s mother never asked the school
to notify her immediately if D.E. skipped class. No claim is made that
any act or omission of the school district violated the IDEA or D.E.’s IEP.
The district generally owes no duty to a special education student to
provide services beyond those specified in the IEP. Cf. Pahssen v. Merrill
Cmty. Sch. Dist., 668 F.3d 356, 366–67 (6th Cir. 2012) (affirming
summary judgment for school district on sexual assault claim because it
owed no duty to supervise disabled student beyond period specified in
IEP); Worthington v. Elmore Cnty. Bd. of Educ., 160 F. App’x 877, 881–82
34
(11th Cir. 2005) (affirming summary judgment for school district on
sexual assault claim because IEP did not require additional adult
supervisor on bus transporting special-needs student). In fact, plaintiffs’
argument that the school should have restricted D.E.’s movements
between classes after fifth period would likely have resulted in a violation
of federal law, unless the school restricted the movement of all students.
Thus, D.E.’s mental disability does not support extending the school
district’s liability to reach this off-campus, after-hours, private assault.
The facts, viewed in the light most favorable to the verdict, do not
support a finding of negligence. D.E. was a freshman Level II special
education student at Kennedy High School, which had 1834 students
during the 2007–2008 school year. D.E. suffered from mild mental
retardation. Her reading was at the third-grade level and her math skills
were at the fifth- or sixth-grade level. D.E. took her academic subjects in
special education classrooms and subjects like physical education and
ceramics with the general school population. The special education
classes were generally smaller than regular classes and usually
contained an additional instructor, a teacher’s associate.
Although the majority says that D.E. was “rarely, if ever, without
direct adult supervision because of her diminished capacity,” the record
does not support this. In fact, like other general education and Level II
special education students, D.E. went between classes on her own, going
outside the building when that was the most convenient route. Also, on
the day in question, D.E.’s mother had given D.E. permission to ride the
bus to another special education student’s house after school. D.E.’s IEP
stated, “[D.E.] is capable of performing daily living skills on her own
except for managing her finances independently.”
35
Instead of riding the bus to that friend’s house that day, D.E. and
the friend walked out of the school building one class period early. They
met up with a senior, M.F., another special education student. No
teacher saw them leave together. M.F. regarded D.E. as his girlfriend
and said she wrote him a note earlier that day saying she wanted to have
sex with him. According to D.E., they were picked up by a fourth
student who was driving a car while they were walking along the street
some distance from the school. The fourth student drove them to M.F.’s
grandparents’ house, where various adults were present. After about
twenty minutes, M.F. and D.E. left the grandparents’ house. They went
to a gas station where they bought a condom. They then walked to the
home of yet another friend of M.F.’s, who was also a special education
student. At about 4:10 or 4:15 p.m., approximately one and a half hours
after the end of the school day, M.F. and D.E. entered the garage of
M.F.’s friend’s house. M.F. had sex with D.E. while M.F.’s friend was
shooting BBs at her. M.F. was nineteen and D.E. was fourteen at the
time; M.F. subsequently was charged with and pled guilty to third-degree
sexual abuse.
There is no evidence that M.F.’s assault on D.E. was reasonably
foreseeable to the school district. Her teacher saw D.E. and M.F.
touching affectionately and romantically, behavior that is not uncommon
at a high school. Her teacher knew D.E. skipped the last class period
and without phoning the mother during class, recorded her absence to
trigger parental notification that evening. The majority concludes these
facts justify imposing liability on the district for M.F.’s assault on D.E. I
disagree. The IEP did not require extra supervision for D.E. or immediate
notice to her mother if she missed a class. D.E. lied to her mother about
her after-school whereabouts; her intended liaison with M.F. was likely to
36
occur somewhere, sometime whether or not she skipped her last class.
She was not abducted from school. The school’s conduct had no more
than a “ ‘serendipitous causal connection’ ” to M.F.’s sexual assault on
D.E. hours later and miles away, which places his criminal act outside
the school’s scope of liability. See Royal Indem. Co. v. Factory Mut. Ins.
Co., 786 N.W.2d 839, 851–52 (Iowa 2010) (noting the defendant’s
conduct must increase the risk of harm to fall within the scope of liability
and that a mere “serendipitous causal connection” is insufficient (quoting
Restatement (Third) § 30 cmt. b, at 544)).
The majority relies on cases from other jurisdictions that are
readily distinguishable as involving a breach of the duty of care at the
time of dismissal of young children. In Jerkins v. Anderson, the
New Jersey Supreme Court affirmed an appellate decision reversing
summary judgment for the school district when a nine-year-old student
was struck by a car walking several blocks from school after an early
dismissal. 922 A.2d 1279, 1281 (N.J. 2007). The Jerkins court focused
on the school’s “duty of reasonable care to supervise children at
dismissal” and noted the father (who arrived at the normal closing time
to pick up his child) claimed he was not notified the children would be
released early. Id. at 1281–82. The court concluded “the sparse record
. . . may not foreclose liability.” Id. at 1291. The court cautioned that a
“school district’s responsibility has temporal and physical limits,” and
that schools are not “guarantors of students’ safety with respect to all
activities during or after dismissal.” Id. The court focused on the
elementary school’s absence of a dismissal policy. Id. at 1288–90.
Because D.E.’s IEP permitted her to go to and from school and
between classes unescorted, Jerkins is inapposite. So, too, is Perna v.
Conejo Valley Unified School District, 192 Cal. Rptr. 10 (Ct. App. 1983).
37
In that case, two students kept late by a teacher after school were struck
by a car at the adjacent intersection after the shift ended for the crossing
guards there. Id. at 10–11. The court held a jury question existed as to
the “district’s alleged failure to exercise due care in supervising the
plaintiffs on school premises.” Id. at 12.
Equally inapposite is the pair of Louisiana cases cited by the
majority. Both found the school district could be liable for the school’s
negligent supervision of six-year-olds at the time of dismissal. In Gary v.
Meche, an unsupervised six-year-old ran into the side of a truck that was
driving in front of the school at dismissal time. 626 So. 2d 901, 902 (La.
Ct. App. 1993). In Sutton v. Duplessis, a six-year-old was placed in the
school office to wait for her mother. 584 So. 2d 362, 363–64 (La. Ct.
App. 1991). The child wandered off unnoticed by the secretary assigned
to watch him and went to a friend’s home a block away where the parent
sent him walking back to school; he then darted into the path of a car.
Id. at 364. The court held “the school authorities should have foreseen
that a six-year-old might disobey orders not to leave, especially when he
realized that no adult was actually watching him.” Id. at 366.
The majority overlooks recent Louisiana precedent that is more
factually analogous. In Huey v. Caldwell Parish School Board, a sixteen-
year-old female student contrived excuses to convince the school bus
driver to let her off early for clandestine sexual liaisons. 109 So. 3d 924,
926 (La. Ct. App. 2013). In affirming summary judgment for the school
board, the appellate court concluded “the concept of legal cause is
necessary to cut off liability at some point. In this case, too much has
intervened, and this risk is not within the scope of [the school’s] duty.”
Id. at 930. The same reasoning applies here.
38
The best case for the majority is Doe v. Escambia County School
Board, 599 So. 2d 226 (Fla. Dist. Ct. App. 1992). That court reversed
summary judgment for the school to reinstate claims arising from the off-
campus rape of a fourteen-year-old mentally disabled girl based on a
factual dispute over whether the school had negligently supervised the
school building and parking lot where, during her lunch period, “a male
student took her by the arm, walked her out to the school parking lot,
put her in a car, and took her to a house.” Id. at 227–28. Three teachers
were aware the victim was acting strangely that morning “because she
twice changed out of her conservative dress into a mini-skirt. Each time
a teacher compelled her to change back into the dress she initially wore
to school.” Id. at 227. Such behavior warranted more supervision.
Another Florida appellate court “distinguish[ed] Doe because the student
in that case was abducted rather than having left voluntarily.” Kazanjian
v. Sch. Bd., 967 So. 2d 259, 266, 267 (Fla. Dist. Ct. App. 2007) (affirming
summary judgment for school district on claim by estate of student killed
in an off-campus car accident after skipping school). Doe is inapposite.
D.E. exhibited no unusual behavior warranting greater supervision at
school and skipped her last class that day voluntarily—she was not
abducted at school by M.F.
The great weight of authority holds as a matter of law that schools
are not liable for assaults occurring off campus after school hours and
outside of school activities. The majority attempts to sidestep these
cases because they were decided “using the old duty framework of the
Restatement (Second)” and the duty issue was not preserved below. But,
as the majority acknowledges, “consistent with the framework of the
Restatement (Third), courts may use either duty or scope-of-liability
determinations to limit liability in negligence cases.” In McCormick, we
39
discussed how the law of duty remains intact in important ways after
Thompson:
Historically, the duty determination focused on three
factors: the relationship between the parties, the
foreseeability of harm, and public policy. [Thompson, 774
N.W.2d] at 834. In Thompson, we said that foreseeability
should not enter into the duty calculus but should be
considered only in determining whether the defendant was
negligent. Id. at 835. But we did not erase the remaining
law of duty; rather, we reaffirmed it. Id. at 834–36. In short,
a lack of duty may be found if either the relationship between
the parties or public considerations warrants such a
conclusion.
McCormick, 819 N.W.2d at 371 (emphasis added). We reiterated “that
our previous law of duty was otherwise still alive and well.” Id. We
affirmed summary judgment for the defendant electrical subcontractor
under the control rule that predated Thompson. Id. at 375; see also Feld
v. Borkowski, 790 N.W.2d 72, 76–77 & n.1 (Iowa 2010) (applying contact-
sports rule that predated Thompson to tort claim arising from injury to
player during high school intramural softball game because the
Restatement (Third) “expresses the notion that a reasonable-care duty
applies in each case unless a special duty, like the contact-sports
exception, is specifically recognized” (citing Restatement (Third) § 7, cmt.
a, at 77)). It is true the Restatement (Third) provides a new analytic
approach, but it is wrong to conclude cases previously subject to
dismissal by summary judgment now must go to the jury. “Our court’s
recent adoption of sections of the Restatement (Third) of Torts is not the
death knell for summary judgments in negligence cases.” Hoyt v. Gutterz
Bowl & Lounge, L.L.C., 829 N.W.2d 772, 783 (Iowa 2013) (Waterman, J.,
dissenting) (citing McCormick, 819 N.W.2d at 371–75).
I believe the numerous no-liability school cases would have the
same outcome under the Restatement (Third) because the harm to the
40
plaintiff was outside the scope of the school’s liability and because of the
limited nature of the school’s duty under section 40, comment l. A
defendant’s conduct may fall outside the scope of liability when, as here,
it does not increase the risk of harm to plaintiff, or because the
intervening criminal act was not reasonably foreseeable. See
Restatement (Third) § 34 cmt. e, at 589 (“In cases in which the source of
the risk is an intervening act, the foreseeability of the intervening act will
determine whether an actor’s liability extends to any harm that occurs.”).
In Royal Indemnity, we observed:
The concepts embodied in the Restatement (Third), however,
have largely been adopted from various sections of the
Restatement (Second). See [Restatement (Third)] § 29 cmt. a,
at 493 . . . . (stating that there was a limit on the scope of
liability for tortious actions under the Restatement (Second),
however, components of this limit were expressed in several
different sections throughout the Restatement (Second)). . . .
We also note that the result under a Restatement (Second)
analysis would be the same.
786 N.W.2d at 849 (emphasis added). The Restatement (Third) does not
tilt the playing field; rather, as we noted in Royal Indemnity, the result
under the Restatement (Second) would be the same.
Unlike the majority, I would not disregard persuasive authority
from other jurisdictions merely because those states have not joined Iowa
in adopting the scope-of-liability approach articulated in the Restatement
(Third). See, e.g., Hill v. Safford Unified Sch. Dist., 952 P.2d 754, 756,
761 (Ariz. Ct. App. 1997) (holding the school not liable for an after-hours,
off-premises student shooting because “as a matter of law [the school]
could not have taken reasonable measures that probably would have
prevented the attack” (citation and internal quotation marks omitted));
Concepcion v. Archdiocese of Miami, 693 So. 2d 1103, 1105–06 (Fla. Ct.
App. 1997) (affirming summary judgment for school district on
41
negligence claims arising from off-campus, after-hours fight between
students of rival schools); Beshears v. Unified Sch. Dist. No. 305, 930
P.2d 1376, 1378, 1383 (Kan. 1997) (affirming summary judgment for
school district on claims it failed to prevent “an after school hours, off
school premises . . . prearranged fight between two high school
sophomores”); Maldonado v. Tuckahoe Union Free Sch. Dist., 817
N.Y.S.2d 376, 377–78 (App. Div. 2006) (affirming summary judgment for
school district dismissing claims it failed to protect student attacked at
night at her home by a suspended student who had threatened her at
school); Edson v. Barre Supervisory Union # 61, 933 A.2d 200, 202–04
(Vt. 2007) (holding that a school has a duty “to protect students only
from foreseeable risks” and finding the off-the-premises murder of a
student after she skipped class was unforeseeable).
The Vermont Supreme Court recognized that to impose liability on
schools for crimes occurring when a troubled student skips school would
result in higher security costs that divert resources from the primary
mission of schools—education:
Elevating the duty of care to ensure that students with
known truancy, drug abuse, or other behavioral problems
remain on campus would not only be financially and
logistically burdensome, but would likely detract from
schools’ primary purpose by diverting significant resources
from education to security. Under the circumstances of this
case, nothing short of continuous, immediate supervision
would have prevented DeAndra from voluntarily leaving
school and going to Martin’s home. . . . Vermont schools are
neither equipped nor expected to provide such constant
supervision to students, even those with a troubled history.
Edson, 933 A.2d at 206 (citation omitted). This is equally true of Iowa
schools. In Brokaw v. Winfield–Mt. Union Community School District, we
admonished that “ ‘excessive precautions’ ” should not be required to
avoid the risk of harm from even “ ‘somewhat foreseeable’ ” improper acts
42
of third parties. 788 N.W.2d 386, 392, 393–94 (Iowa 2010) (quoting
Restatement (Third) § 19, cmts. g–h, at 220–21) (affirming bench trial
judgment for school on claims arising from student assault during
basketball game). The majority today disregards that admonition by
requiring high schools to take excessive precautions.
Teachers can be teaching or contacting parents, but cannot do
both effectively at the same time. The principal of Kennedy High School,
Mary Wilcynski, testified at trial as to why it would be unrealistic to
require a teacher to phone the parent when a student is not in class:
It’s unrealistic to assume that a teacher can stop
helping kids learn and being in charge of the classroom, go
to the phone and make—figure out the phone number, figure
out where the parent is, working or at home or whatever, call
them and say, I see that it’s ten to two and your child is not
in my class. The student might have gotten a pass to come
to the office. The student might have gotten a pass to go
somewhere else. An administrator might be talking to them.
They might be seeing their counselor. There can be a myriad
of different places they could legitimately be. So for a
teacher to say—to try to contact a parent on the immediate
absence is unrealistic.
Why should our court be the first in the nation to hold a school
can be found negligent for failing to immediately notify the parent of a
high school student that she is not in class last period? I would not
impose this unrealistic burden on teachers, particularly when it is
entirely speculative whether D.E.’s plan to meet privately with M.F.
would have been thwarted by her mother if she had received a phone call
earlier.
It is not surprising that other courts refuse to impose liability on
schools for injuries occurring when high school students skip classes. In
Kazanjian, several eleventh graders skipped school and were involved in
43
a fatal car accident. 967 So. 2d at 261–62. In affirming summary
judgment for the school district, the court stated:
[W]e hold that no duty exists. As the record demonstrates,
high school students routinely skip school yet, as the
paucity of reported cases shows, horrific car crashes while
skipping school are exceedingly rare. Placing liability on the
school board for off campus automobile accidents involving
high school students would encourage the imposition of
hyper-restrictive conditions on high school campuses. The
off-campus dangers confronting high school students are
risks that should be confronted by students and their
parents. We conclude that in the context of a negligence
cause of action brought on behalf of a student injured off
campus, a school may not be held liable for injuries suffered
by a student who has violated the school’s campus
attendance policies.
Id. at 268 (citation omitted).
Another Florida appellate court observed that a school’s duty of
supervision ends when the student leaves school, and to hold otherwise
makes schools insurers of student safety until they arrive at home:
We fully concur with Oglesby’s holding that a school
has no duty to supervise off-campus, non-school related
activities occurring during non-school hours. Any holding to
the contrary would essentially make school officials insurers
of all students’ safety until the students return home each
day. We decline to place such an unreasonable and onerous
burden on school officials. At some point, we believe that a
school’s obligation of reasonable supervision must come to
an end and the parent or guardian’s duty of supervision
must resume. That logical point, we think, should be when
the student leaves the school’s premises during non-school
hours and is no longer involved in school-related activities.
Concepcion, 693 So. 2d at 1105 (citing Oglesby v. Seminole Cnty. Bd. of
Pub. Instruction, 328 So. 2d 515, 516–17 (Fla. Dist. Ct. App. 1976)).
This case involves no preventable criminal act at school such as an
abduction. The majority fails to articulate any persuasive reason to
diverge from the well-settled authority enforcing a bright-line rule
limiting school liability to injuries occurring on school grounds or during
44
school activities. The bright-line rule makes sense because a school
cannot control the conduct of teenagers after hours, off-campus, outside
of a school activity with no teacher present. See McCormick, 819 N.W.2d
at 374 (noting rule that liability follows control makes sense because
“[t]he party in control . . . is best positioned to take precautions to
identify risks and take measures to improve safety”). I would continue to
apply that rule in our state, consistent with comment l to section 40 of
the Restatement (Third) of Torts.
For the foregoing reasons, the defendant school district was
entitled to a directed verdict.
Mansfield, J., joins this dissent.