Bell v. Northwest School of Innovative Learning

Filed
Washington State
Court of Appeals
Division Two
March 7, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MISTI BELL, individually, and as guardian for No. 48063-8-II
her daughter, C.B., a minor, and SCOTT
BELL, individually,
Appellants,
v.
NORTHWEST SCHOOL OF INNOVATIVE PUBLISHED OPINION
LEARNING,
Respondent,
BETHEL SCHOOL DISTRICT, a public
corporation, individually; BHC FAIRFAX
HOSPITAL INC., a Tennessee for profit
corporation d/b/a FAIRFAX HOSPITAL
BEHAVIORAL HEALTH SERVICES; and
UNIVERSAL HEALTH SERVICES, INC., a
Delaware for profit corporation,
Defendants.
JOHANSON, J. — CB1 appeals the superior court’s grant of summary judgment dismissing
her negligence claims against Northwest School of Innovative Learning (NW School). The
superior court ruled that NW School owed no duty to CB. We agree and affirm.
1
We use initials to protect confidentiality. See Gen. Order 2011-1 of Division II, In re the Use of
Initials or Pseudonyms for Child Witnesses in Sex Crime Cases (Wash. Ct. App.),
http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders&div=II.
No. 48063-8-II
FACTS
CB was a 15-year-old special education student. Because the Bethel School District
(District) was unable to meet CB’s special education needs, it contracted with NW School to
provide special education services to her.
In March 2012, at the end of NW School’s educational day, CB boarded a District school
bus. The District school bus picked up students from the sidewalk adjoining a city street in front
of NW School. CB was agitated and began a verbal altercation with another student and the
District’s bus driver, Norma Henderson. Through her window, Henderson told a NW School
employee outside the bus that “[CB] is not in a good mood” and that CB was “going to start a
conflict” with the other student. Ex. 1, at 13:49:14-20.2 James Tate, a NW School Behavior
Intervention Specialist, came to the bus doorway and spoke to CB. According to Tate, when he
approached the bus, he observed two agitated students, but the situation looked “contained” and
was not “out of control.” Clerk’s Papers (CP) at 707. He dealt with the students on the bus as he
would in a classroom to try to deescalate the situation. Tate testified that he understood that once
students were on the bus, they became the District’s responsibility.
After Tate left, CB and the other student sat quietly in their seats. Henderson radioed that
she was “having an issue” and that she was planning to take off, but that if she had problems she
would call 911. Ex. 1, at 13:52:32. CB asked to go back into the school. CB and Henderson got
off the bus and tried to reenter NW School so CB could call her dad for a ride, but the school doors
were locked. There was a small doorbell on the NW School building, CB rang it and “could see
2
Exhibit 1 is the video footage of the bus incident.
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No. 48063-8-II
shadows and people moving back there,” but no one came to the door. CP at 545. She felt
frustrated and got back on the bus.
After they returned to the bus, CB asked Henderson to call her dad or her social worker.
Henderson told CB that her only options according to the District’s emergency protocol were for
CB to remain on the bus or for Henderson to call 911. This agitated CB, who stated that if the
driver called 911, CB would be taken to jail. CB got off the bus. Henderson then notified her
dispatcher and called 911. After CB got off the bus, she walked to the public library where she
met Michael Bond, a stranger. CB agreed to go to Bond’s apartment. At the apartment, Bond
sexually assaulted her.
The District’s policy was that “‘[w]hen a teacher, coach, or other certified staff member is
assigned to accompany students on a bus, such person shall be primarily responsible for behavior
of the students in his/her charge. The bus driver shall have final authority and responsibility
regarding the safe transport of students.’” CP at 28. District bus drivers take responsibility for
students once a student gets on the bus. Additionally, before the bus leaves a student at the school,
the bus driver must wait for a representative from the school to come get the student or the bus
driver must walk the student back into the school and connect them with a school representative
in a “positive handoff” so the student would not be left unsupervised. CP at 34.3
3
In their briefing to this court, the parties did not dispute that the District provided bus
transportation for CB. However, at oral argument, CB for the first time claimed that NW School
was responsible for transportation. We do not consider issues raised for the first time in oral
argument. RAP 12.1(a).
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No. 48063-8-II
II. PROCEDURAL HISTORY AND SUMMARY JUDGMENT HEARING
Based on Bond’s sexual assault, CB brought negligence and gross negligence claims
against NW School and the District. NW School and the District moved for summary judgment
on all claims.4 NW School argued in relevant part that summary judgment was appropriate
because, as a matter of law, NW School owed CB no duty once CB left NW School’s custody.
In opposition, CB argued that NW School had a duty to protect CB from reasonably
foreseeable harm. CB’s expert, Dr. Edward Dragan, Ed.D., opined that both the District and NW
School were aware of CB’s mental illnesses and disabilities. According to Dragan, the District
and NW School’s knowledge placed a “direct burden and responsibility on both defendants to
address [CB’s] manifestations” to protect her and others from harm that could come from CB’s
inability to make rational decisions. CP at 838. Dragan opined that NW School’s duty to promote
its students’ safety and welfare does not terminate at the bus door, and thus NW School had a duty
to monitor and provide assistance to the bus driver until the bus departed. He noted that the bus
did not leave the NW School loading area until after CB got off the bus.
The superior court concluded as a matter of law that the District, not NW School, had
custody of CB at the time she left the bus and thereafter suffered harm. The superior court denied
summary judgment regarding the claims against the District. The superior court granted summary
judgment and dismissed the claims against NW School. CB appeals the summary judgment ruling
in favor of NW School.
4
The District was ultimately dismissed from the suit.
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No. 48063-8-II
ANALYSIS
PRINCIPLES OF LAW
We review an order of summary judgment de novo and perform the same inquiry as the
superior court. Jones v. Allstate Ins. Co., 146 Wash. 2d 291, 300, 45 P.3d 1068 (2002). Summary
judgment is appropriate where the pleadings, admissions on file, and affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. CR 56(c).
To prevail in a negligence suit, a party must first show the existence of a duty to the
plaintiff. N.L. v. Bethel Sch. Dist., 186 Wash. 2d 422, 429, 378 P.3d 162 (2016). “Whether a duty
exists is a question of law for the court.” N.L., 186 Wash. 2d at 429. Generally, there is no duty to
prevent a third person from causing physical injury to another, but such a duty can arise when a
special relationship exists between the defendant and either the third party or the foreseeable victim
of a third party’s conduct. N.L., 186 Wash. 2d at 429-30. School districts and school children have
a special relationship that can create a duty because children are compelled to attend school.
McLeod v. Grant County Sch. Dist. No. 128, 42 Wash. 2d 316, 319, 255 P.2d 360 (1953). A school
district has a duty to take certain precautions to protect its pupils in its custody from dangers
reasonably anticipated. McLeod, 42 Wash. 2d at 320.
In this relationship, the protective custody of school staff is mandatorily substituted for that
of the parent. N.L., 186 Wash. 2d at 430-31. At the heart of a special protective relationship is
entrustment of a vulnerable individual. HBH v. State, 197 Wash. App. 77, 91, 387 P.3d 1093 (2016).
Thus, a special relationship depends on the establishment of entrustment, not custody, but custody
may define whether there was a duty. HBH, 197 Wash. App. at 90-91.
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A district’s duty to exercise reasonable care may end when the student leaves the district’s
custody, but a district’s liability for a breach of duty while a student was in its custody is not cut
off just because a harm did not occur until later. N.L., 186 Wash. 2d at 432. Thus, where a duty
arises and a breach of that duty occurs while a student is in a district’s custody, then whether the
scope of that duty extends to incidents off campus will depend on whether such incidents were
foreseeable to the district. See N.L., 186 Wash. 2d at 435. If a defendant does not owe a duty, then
further analysis regarding negligence is unnecessary. Minahan v. W. Wash. Fair Ass’n, 117 Wn.
App. 881, 890, 73 P.3d 1019 (2003).
DUTY
The issue here is whether NW School owed CB a duty. CB argues that whether NW School
had a duty to her should not depend on whether NW School had custody of CB, but should be
determined based on the “foreseeability of the harm.” Br. of Appellant at 23. CB further argues
that N.L. “plainly rejects” NW School’s argument that foreseeability alone does not create a duty
by the school district without custody of the student. Reply Br. of Appellant at 4. Thus, CB argues
that under N.L., “foreseeability is the most important variable in determining the duty of a school
district” and that N.L. is determinative in this case. Reply Br. of Appellant at 1. We agree that
N.L. controls, but we disagree with CB’s remaining arguments.
In N.L., the 14-year-old victim met Nicholas Clark, age 18, at school track practice. 186
Wash. 2d at 425. Both were students in the District. N.L., 186 Wash. 2d at 425. Neither N.L. nor any
responsible adult on the field knew that Clark was a registered sex offender who had previously
sexually assaulted a young girl about N.L.’s age. N.L., 186 Wash. 2d at 425-26. Clark’s school
principal knew of Clark’s sex offender status, but the principal took no responsive action. N.L.,
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No. 48063-8-II
186 Wash. 2d at 426. Clark persuaded N.L. to leave campus and raped her. N.L., 186 Wash. 2d at 426.
N.L. sued the District for negligence. N.L., 186 Wash. 2d at 426.
Our Supreme Court stated that the issue was “whether [the] District’s duty to N.L. ended
when she left campus.” N.L., 186 Wash. 2d at 426 (emphasis added). The N.L. court held that a
“district’s duty to exercise reasonable care might end when the student leaves its custody,” but a
district’s liability for a breach of duty “while the student was in its custody would [not] be cut off
merely because the harm did not occur until later.” 186 Wash. 2d at 432 (first emphasis in original;
emphasis added).
The N.L. court thus concluded that the duty to N.L. “arose while N.L. and Clark were in
the district’s custody,” as did the alleged breach when the District failed to take steps to protect
students from Clark while on school property. 186 Wash. 2d at 432. In response to the District’s
arguments that it had no duty because the eventual harm to N.L. was unforeseeable, the court
concluded that whether N.L.’s injury “fell within the scope” of the District’s duty was a question
of fact for the jury. N.L., 186 Wash. 2d at 436.
The mere fact that an injury occurs off campus is not determinative of whether a duty
exists; rather, the relevant inquiry is to the location of the negligence rather than the location of
the injury. N.L., 186 Wash. 2d at 435. Contrary to CB’s contentions, N.L. does not establish that a
school district’s duty to its students arises from foreseeability alone regardless of whether the
student is in the district’s custody. Rather, N.L. established that where a duty arises and a breach
of that duty occurs while a student is in a school district’s custody, then whether the scope of that
duty extends to incidents off campus will depend on whether such incidents were foreseeable to
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No. 48063-8-II
the school district. N.L., 186 Wash. 2d at 435. Accordingly, we reject CB’s attempt to extend N.L.’s
holding.
CB argues that the location of the negligence—where NW School had a duty—was “to
properly supervise and protect [CB] in the loading area and outside the school doors of [NW
School].” Br. of Appellant at 22. CB argues that while she was in NW School’s bus loading area,
“[NW School] staff watched and did nothing as [CB’s] behaviors escalated,” that CB was having
a “mental health crisis” known to NW School, and that when CB tried to reenter the school, “[NW
School]’s reaction was to keep the doors closed.” Br. of Appellant at 27, 23, 33. These arguments
fail.
NW School, as the party moving for summary judgment, has the burden to demonstrate
that there are no genuine issues of material fact. Pac. Nw. Shooting Park Ass’n v. City of Sequim,
158 Wash. 2d 342, 350, 144 P.3d 276 (2006); CR 56. NW School argues that the evidence showed
that CB was in the District’s custody from the time she got on the bus initially until she walked off
the bus and the driver called 911. At that point, when CB got off the bus the second time, NW
School argues that CB was no longer in NW School’s custody and it no longer owed CB a duty of
care. Thus, the material fact at issue is who had custody of CB.
On the issue of the custody of CB, NW School submitted evidence that CB was on the
District’s school bus. NW School also submitted evidence that it is the District’s policy that once
a student enters a District school bus, the District’s school bus driver has responsibility for the
student and has final authority regarding the students’ transport. Before the bus driver can leave a
student at NW School, if the student cannot be transported on the bus, the bus driver must wait for
a representative from NW School to come get the student or the bus driver must walk the student
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No. 48063-8-II
back into school and connect them with a school representative in a “positive handoff” so that the
student is not left unsupervised. CP at 34. Finally, Tate spoke to CB on the bus, confirmed the
situation seemed contained, and he left the bus.
Thus, NW School submitted evidence to establish that CB was on the District school bus
and, pursuant to District policy, CB was no longer in NW School’s custody and care. These facts
do not raise any material dispute that CB was in the District’s custody and not in NW School’s
custody.
The burden shifts to the nonmoving party, here CB, to present admissible evidence
demonstrating the existence of a genuine issue of material fact. Pac. Nw., 158 Wash. 2d at 351. If
the nonmoving party cannot meet that burden, summary judgment is appropriate as a matter of
law. Pac. Nw., 158 Wash. 2d at 351. CB must set forth specific evidentiary facts to show factual
issues remain and she cannot meet her burden by relying on mere allegations. CR 56(e). Here,
CB does not meet her burden.
It is undisputed that CB entered a District school bus after school. Tate approached the
bus and calmed CB down, but Tate did not assume custody of CB on behalf of NW School. Soon
after, CB and the District’s school bus driver, Henderson, tried to reenter NW School so CB could
call her dad for a ride, but the doors were locked. They returned and got on the bus, and CB asked
Henderson to call her dad or her social worker. Henderson told CB that her only options according
to the District’s emergency protocol were for CB to remain on the bus or for Henderson to call
911. CB left the bus. Henderson called 911.
These facts show that CB was in the District’s custody at least from the time CB entered
the bus the second time until she walked off the bus and the driver called 911. There was never a
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“positive handoff” from the District bus driver to a NW School staff member. Thus, there is no
question of fact here: the District had custody of CB for the purpose of determining who owed
CB a duty of care.
CB argues, without legal authority, that NW School owed her a duty because they knew
she was “in the midst of a known-mental health crisis while in the loading area and outside the
doors of the school.” Br. of Appellant at 23. But as NW School argues, CB’s focus on the fact
that the bus never left the school bus loading area is a “red-herring.” Br. of Resp’t at 31. First,
there is no “loading area” on the NW School campus, the District school bus picked up students
from the sidewalk adjoining a city street in front of NW School. CP at 710. And regardless of the
location of the “loading area,” the fact that the bus did not leave the “loading area” does not
establish NW School had custody of CB or owed her a duty of care. Custody is not determined
by physical location alone. Although the bus did not leave the sidewalk in front of NW School,
that fact is not legally material to the determination of CB’s custodial control. Second, even
assuming NW School knew CB was in a “mental health crisis,” CB does not explain how that fact
establishes that NW School owed her a duty of care.
Because CB entered the District’s school bus and there was a “positive handoff” from NW
School to the District school bus driver, the District had custody of CB and owed CB a duty of
care. CB fails to meet her burden to set forth evidence creating an issue of fact that NW School,
and not the District, had custody of CB once she was on the District school bus. Since NW School
did not owe a duty to CB at the time she left the bus, further analysis regarding NW School’s
negligence is unnecessary. Minahan, 117 Wash. App. at 890. Summary judgment was properly
granted as a matter of law.
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No. 48063-8-II
Affirmed.
JOHANSON, J.
We concur:
WORSWICK, P.J.
SUTTON, J.
11