                                                       201(1 JUL io Ari /: Liu




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE


JAMES HOPKINS, JR.,                              No. 73147-5-1


                           Appellant,

                 v.                              UNPUBLISHED OPINION

SEATTLE PUBLIC SCHOOL DISTRICT
NO. 1,

                           Respondent.           FILED: July 18, 2016

      Schindler, J. — It is well established that a school district has a special

relationship and a duty to use reasonable care to protect students in its custody from
foreseeable harm. James Hopkins Jr. appeals the verdict in favor of Seattle Public

School District No. 1 (School District). Hopkins contends the trial court erred in refusing
to instruct the jury on the special relationship and duty ofthe School District. Because
the court's instructions allowed the jury to apply an ordinary negligence standard without

regard to the special relationship and duty of the School District, we reverse the
judgment on the verdict, and remand for a new trial.
                                          FACTS

       In 2006, James Hopkins Jr. and E.E. were students at Aki Kurose Middle School.
E.E. attended special education classes except for physical education (PE). On June 7,
No. 73147-5-1/2



2006, E.E. and Hopkins were in the boys' locker room after PE class. E.E. punched

Hopkins in the back of his head. Hopkins fell to the ground and broke his jaw.

      On November 1, 2013, Hopkins filed a lawsuit against Seattle School District No.

1 (School District). Hopkins asserted claims for negligence and negligent supervision.

The complaint alleged the School District knew E.E. "was a danger to himself and/or

others." The complaint alleged the School District "owed a duty to Hopkins to supervise

its employees to ensure Hopkins would be free from physical harm while under the

custody and control" of the School District. The School District denied the allegations

and asserted a number of affirmative defenses.

       In his motion for summary judgment on liability, Hopkins cited the leading case

on the special relationship and the duty the School District owed to protect him from

foreseeable harm, McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255

P.2d 360 (1953). Hopkins argued the undisputed facts showed the School District

breached the duty to protect him from foreseeable harm.

      The School District conceded that "[wjith respect to the duty element, there is no

dispute" that a school district has the duty to exercise reasonable care when supervising

students in its custody. The School District argued there were material questions of fact

regarding foreseeability. The court denied summary judgment on liability.

      At the beginning of trial, the court described the claims to the jury:

               The plaintiff, Mr. James Hopkins, whom you were introduced to,
      claims that the Seattle Public School is at fault for injuries he sustained as
      a result of a June 2006 assault by a fellow middle school student whose
      initials are E.E. The plaintiff alleges Seattle Public School District owed a
      duty of reasonable care to protect him and breached this duty by failing to
      prevent E.E. from assaulting him in June 2006. He claims this breach of
      duty was a cause of the June 2006 assault and his injury.
No. 73147-5-1/3



              Defendant public school district denies it breached a duty to use
      reasonable care to prevent students — student-to-student assaults.
      Seattle Public School District further denies that its alleged actions or
      failures to act caused the assault or plaintiff's injury. Seattle Public School
      District also denies the nature and extent of damages plaintiff claims were
      caused by the assault.
              In addition, Seattle Public School District claims that the plaintiff
      was contributorially negligent in provoking the assault and by failing to
      mitigate or reduce his damages, and that the assailant, known by the
      initials E.E., was the proximate cause of plaintiff's injury. The plaintiff
      denies these claims.

       In opening statement, Hopkins' attorney told the jury: "The school district has an

obligation to protect all students from foreseeable harm." The attorney asserted the

School District "was negligent by failing to supervise a special ed kid" they knew was

likely to assault other students and in failing to protect Hopkins from the attack.

       The School District told the jury that it exercised reasonable care in supervising

E.E. and could not have prevented the spontaneous and impulsive assault that was

provoked by Hopkins.

       Near the end of trial, the parties addressed the proposed jury instructions.

       Hopkins' attorney objected to the instructions proposed by the School District

because the instructions did not include an instruction on the special relationship and

duty the School District owed to students or foreseeability. Hopkins argued the court

should give the instructions he proposed on the duty ofthe School District to exercise
reasonable care to prevent foreseeable harm. Hopkins proposed giving the following

instructions:

       Instruction 8:

               A school official stands in the place of a parent when the student is
       in the school's custody. The placement of children under a school's
       custody and control gives rise to a duty on the part of the school to
       exercise ordinary care to protect students in its custody from reasonably
No. 73147-5-1/4


       anticipated dangers, including from the intentional or criminal conduct of
       third parties.

       Instruction 9:


             Negligence is the failure to exercise ordinary care. Ordinary care is
      that degree of care which an ordinarily careful and prudent person would
      exercise under the same or similar circumstances or conditions. A school
      district fails to exercise ordinary care to protect students if it fails to
      anticipate dangers that may reasonably be anticipated or to take
      reasonable precautions to prevent the harm from occurring.

       Instruction 10:


              Whether a risk of harm is reasonably foreseeable under the same
      or similar circumstances depends upon the particular defendant's
      characteristics and experience. Where the disturbed, aggressive nature of
      a child is known to school authorities, proper supervision requires the
      taking of specific, appropriate procedures for the protection of other
      children from the potential for harm caused by such behavior.

The School District attorney objected to Hopkins' proposed instructions as incorrect,

misleading, and argumentative.

      The School District asserted the pattern instructions based on 6 Washington

Practice: Washington Pattern Jury Instructions: Civil (6th ed. 2012) (WPI) accurately

stated the "duty is to exercise ordinary care, to reasonably supervise students within its

custody. That's the duty at issue."1 The School District argued the court should give its

proposed instructions including the WPI on negligence and ordinary care:

       Instruction 8:


               Negligence is the failure to exercise ordinary care. It is the doing of
       some act that a reasonably careful person would not do under the same or
       similar circumstances or the failure to do some act that a reasonably
       careful person would have done under the same or similar circumstances.

See WPI 10.01, at 124. Instruction 9: "Ordinary care means the care a reasonably



       1 Internal quotation marks omitted.
No. 73147-5-1/5


careful person would exercise under the same or similar circumstances." See WPI

10.02, at 126.

       Hopkins did not object to giving the WPI on ordinary care but argued it was

"critical" to give his proposed jury instructions on the special relationship and duty of the

School District.

               This language is taken from the cases that are cited. This is about
       the special relationship. And that's what this case is all about — I mean,
       that's a critical piece to Plaintiff's case is that when Mr. Hopkins stepped
       out of — off the bus or stepped onto the bus out of his family home and
       then was in the school, he had a relationship with the school in — that's
       akin under the law as between him and his parents. Uh, that's absolutely
       supported in the law. And that relationship, gives ri[s]e to the — to a
       special obligation to — from the school to protect him.

              . . . And I think it's very important for the Court to instruct the jury on
       this special relationship that Mr. Hopkins had and the obligations that arise
       on the school because of that.


               The jury needs to understand the special relationship between the
       school and its students. And I think it's appropriate to explain what
       negligence and ordinary care means in the context of that school. I think
       that's another very important part of it.

       The next day, the court provided the parties with a copy of the court's proposed

jury instructions. The court's proposed instructions included the WPI on negligence and

ordinary care.2 The court's proposed instructions did not include an instruction on the

special relationship and duty of the School District to protect students in its custody or

on foreseeability.




       2 In addition to WPI 10.01 and 10.02, the court also included an instruction based on WPI 12.07.
             Every person has the right to assume that others will exercise ordinary care and
       complywith the law and a person has a rightto proceed on such assumption until he or
       she knows, or in the exercise of ordinary care should know, to the contrary.
See WPI 12.07, at 159.
No. 73147-5-1/6



       Hopkins filed a memorandum objecting to the failure of the court to include a jury

instruction on the duty the School District owed to a student and on foreseeability.

Hopkins argued it was error for the court to refuse to instruct the jury on the duty of the

School District to protect a student from foreseeable harm.

      When trial reconvened, the parties addressed the court's proposed instructions.

       The School District argued a school has the duty of ordinary care and a separate

instruction on the special relationship was unnecessary.

       [W]hat the cases say is that school districts have a duty of ordinary care to
       their students. The reason why they have that duty of ordinary care is
       because of this special relationship. Therefore, it's not necessary to
       instruct the jury that, yeah, they have a special relationship. That's just
       the [basis] for whether it's the duty of ordinary care.

       Hopkins objected to the court's instructions. Hopkins argued the court had to

instruct the jury on the duty of the School District and foreseeability.

              This is not a cookie cutter case. This involved misconduct of an
       intentional actor, and it involves a school district that has a special
       relationship and obligation to Mr. Hopkins. I believe it would be error for
       the Court not to instruct the jury on the specific duty owed by the school
       district and provide some instruction on what the duty means when it
       pertains to intentional acts or misconduct of third parties.

       The court stated it refused to give Hopkins' proposed instructions on the duty of

the School District and foreseeability because the instructions contained language that

was argumentative and "inflammatory."

       Hopkins reiterated the failure ofthe court to give an instruction on the duty ofthe
School District and foreseeability would constitute legal error and prevent him from

arguing his theory of the case.

       I believe it would be error for this Court to not instruct on the specific duty
       that's owed by [a] school district. At a minimum, there has to be some
       kind of instruction that follows the . . . McLeod court ....
No. 73147-5-1/7



               We cannot argue our case without some kind of instruction about
       that. I don't see how this is included in the plain negligence standard.
       Again, this is not a cookie cutter case.

       The court noted Hopkins' objection but refused to give an additional instruction

on duty or foreseeability. The court ruled Hopkins' theory "can be argued under the

instructions that have been given."

       By special verdict, the jury found the School District was not negligent. The court

entered judgment on the verdict and dismissed the lawsuit.

                                        ANALYSIS


       Hopkins contends the court erred in failing to instruct the jury on the special

relationship and duty of the School District to use reasonable care to protect a student

in its custody from foreseeable harm. The School District asserts the trial court did not

err in refusing to give the jury instructions proposed by Hopkins. The School District

argues the jury instructions proposed by Hopkins were argumentative, misleading, and

incorrect.

       We review the decision not to give a jury instruction for abuse of discretion.

Fergen v. Sestero, 182 Wn.2d 794, 802, 346 P.3d 708 (2015). A trial court need not

" 'give a requested instruction that is erroneous in any respect.'" Crossen v. Skagit

County, 100 Wn.2d 355, 360, 669 P.2d 1244 (1983) (quoting Vooel v. Alaska S.S. Co.,

69 Wn.2d 497, 503, 419 P.2d 141 (1966)).

       However, even if Hopkins' proposed instructions contained more language than

was appropriate, we conclude Hopkins preserved his right to challenge the instructions
given as legally erroneous. The undisputed record establishes Hopkins objected not
only to the refusal to give his proposed instructions, but also to the failure ofthe court to



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No. 73147-5-1/8


give a jury instruction on the duty of the School District to protect a student from

foreseeable harm. See Washburn v. City of Federal Way. 178 Wn.2d 732, 748, 310

P.3d 1275 (2013) (Because the City objected not only to the refusal to give its public

duty doctrine instruction but also objected to giving proposed instructions, the objection

was preserved.); Joyce v. Dep't of Corr.. 155 Wn.2d 306, 325, 119 P.3d 825 (2005)

(The Department properly objected to legally erroneous jury instructions that prevented

the Department from arguing its theory of the case.).

       The purpose of CR 51(f) is to apprise the trial judge of the nature and substance

of the objection. Crossen, 100 Wn.2d at 358. The record shows Hopkins repeatedly

cited the leading Washington Supreme Court case on the special relationship and duty

of the School District to argue that the court must give an instruction on the duty of the

School District and foreseeability.

               School districts owe a duty to protect the pupils in its custody from
       dangers reasonably to be anticipated—including the foreseeable
       misconduct of third-parties, like E.E. Under well-established principles,
       when a pupil attends a school, he or she is subject to the rules and
       discipline of the school, and the protective custody of the teachers is
       substituted for that of the parent[ "to protect the pupils in its custody from
       dangers reasonably to be anticipated."]. . . McLeod, 42 Wn.2d at 319.

Hopkins repeatedly objected to the failure to give a jury instruction on "the specific duty

owed by a public [school] to its student, or the school's duty to protect Mr. Hopkins from

the foreseeable misconduct of third parties" as legal error.

       We conclude the record establishes Hopkins clearly and unequivocally stated the

failure to instruct the jury on the duty of the School District and foreseeability was an

error of law.
No. 73147-5-1/9


       We review legal errors in jury instructions de novo. Fergen, 182 Wn.2d at 803.

Jury instructions are sufficient ifthe instructions are supported by the evidence; allow

each party to argue its theory of the case; are not misleading; and when read as a

whole, properly inform the trier of fact of the applicable law. Fergen, 182 Wn.2d at 803;

Anfinson v. FedEx Ground Package Svs., Inc.. 174 Wn.2d 851, 860, 281 P.3d 289

(2012). If any of these elements is absent, the instruction is erroneous. Anfinson, 174

Wn.2d at 860. If the instruction misstates the law, prejudice is presumed and is grounds

for reversal unless the error was harmless. Fergen, 182 Wn.2d at 803.

       Well established case law imposes a duty on a school district to exercise

reasonable care to protect students in its custody from foreseeable harm. McLeod, 42

Wn.2d at 320; Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 70, 124 P.3d

283 (2005).

       McLeod identifies two factors that determine the scope of the legal duty of a

school district. First, there is the special relationship where the "protective custody of

teachers is mandatorily substituted for that of the parent." McLeod, 42 Wn.2d at 319.

              The relationship here in question is that of school district and
       school child. It is not a voluntary relationship. The child is compelled to
       attend school. He must yield obedience to school rules and discipline
       formulated and enforced pursuant to statute. . . . The result is that the
       protective custody of teachers is mandatorily substituted for that of the
       parent.
              The duty which this relationship places upon the school district has
       been stated in the Briscoe case ... as follows:

              "As a correlative of this right on the part of a school district to
       enforce, as against the pupils, rules and regulations prescribed by the
       state board of education and the superintendent of public instruction, a
       duty is imposed by law on the school district to take certain precautions to
No. 73147-5-1/10


        protect the pupils in its custody from dangers reasonably to be
        anticipated."

McLeod. 42 Wn.2d at 319-20 (quoting Briscoe v. Sch. Dist. No. 123. 32 Wn.2d 353,

362, 201 P.2d 697 (1949)). Second, there is "the duty of a school district... to

anticipate dangers which may reasonably be anticipated, and to then take precautions

to protect the pupils in its custody from such dangers." McLeod, 42 Wn.2d at 320. A
school district must "exercise such care as an ordinarily reasonable and prudent person

would exercise under the same or similar circumstances." Briscoe, 32 Wn.2d at 362.

        Below and on appeal, the School District relies on Kok v. Tacoma School District

No. 10, 179 Wn. App. 10, 317 P.3d 481 (2013), to argue the trial court properly

instructed the jury on the duty of ordinary care to protect students from harm. The
School District claims an instruction on the obligation to exercise reasonable care to

protect students from harm is an unnecessary elaboration ofthe duty of ordinary care.
        We reject the argument that an instruction on the well established legal scope of
the duty of a school district to exercise reasonable care to protect students from
foreseeable harm is unnecessary. Nor does Kok support the argument that the court
properly instructed the jury using the pattern WPI on negligence and the duty of ordinary
care.


        McLeod, not Kok, is the leading authority on the duty of a school district. The

court in Kok addressed whether there was a genuine issue of material fact on

foreseeability. Although foreseeability is "generally a question for the jury," the court
concluded reasonable minds could only conclude the student's acts were "not

foreseeable by the District," and affirmed summary judgment dismissal of the lawsuit.
Kok, 179 Wn. App. at 17-18.


                                             10
No. 73147-5-1/11


       Without citation to authority, the School District argues a jury should not be

instructed on foreseeability. That may be true with respect to proximate cause. See

WPI 15.01, at 191. It is not true with respect to duty. McLeod makes clear that the duty

of a school district to use reasonable care extends only to such risks of harm as are

foreseeable. McLeod. 42 Wn.2d at 320; see also J.N, v. Bellingham Sch. Dist. No. 501.

74 Wn. App. 49, 57, 871 P.2d 1106 (1994). To establish foreseeability, the harm

sustained must be within a "general field of danger" that should have been anticipated.

McLeod. 42 Wn.2d at 321. Acts are foreseeable "only if the district knew or in the

exercise of reasonable care should have known of the risk" that resulted in the harm.

Peckv. Siau. 65 Wn. App. 285, 293, 827 P.2d 1108 (1992). Thus, in this case, it was

essential to instruct the jury on foreseeability.

       We hold the court erred in failing to give jury instructions on the special

relationship and duty of the School District to exercise reasonable care to protect

students from foreseeable harm. Because the instructions given allowed the jury to

apply an ordinary negligence standard without regard to the special relationship and

duty of the School District, the error was not harmless and prevented Hopkins from

arguing his theory of the case. We reverse and remand for a new trial.

       Because the dispute over giving a jury instruction on the obligation of the School

District to educate a student with disabilities and on contributory negligence will likely

arise on remand, we briefly address those instructions.

       The propriety of giving a jury instruction is governed by the facts of the case.

Fergen. 182 Wn.2d at 803.




                                               11
No. 73147-5-1/12



        The court instructed the jury on the federal and state law requirements to

educate special needs students. Jury instruction 17 states:

                Both federal and state laws require public school districts to provide
        appropriate education to students with disabilities. Both federal and state
       laws also require that, to the maximum extent appropriate, public school
       districts must educate children with disabilities in the general education
       environment.


        Hopkins argues the instruction is an improper comment on the evidence and is

irrelevant. We disagree. The instruction was not an unconstitutional comment on the

evidence. See State v. Brush. 183 Wn.2d 550, 565, 353 P.3d 213 (2015); State v.

Becker. 132 Wnh.2d 54, 64, 935 P.2d 1321 (1997). The instruction correctly states the

obligation of a school district under state and federal law and is relevant to whether the

School District exercised reasonable care.


        Hopkins contends that as a matter of law, the Washington Supreme Court

decision in Christensen bars a school district from asserting contributory negligence.3

Below, the parties debated the applicability of Christensen. In Christensen, the court

held that as a matter of public policy, "a defense of contributory fault should not be

available to the perpetrator of sexual abuse or to a third party that is in a position to

control the perpetrator." Christensen. 156 Wn.2d at 70. The opinion makes clear the

court is addressing only "a civil action against a school district... for sexual abuse" by

a teacher; "[t]he act of sexual abuse is key here." Christensen. 156 Wn.2d at 71-72, 69.

        Christensen does not support the argument that as a matter of law, a school

district may never assert contributory negligence. See Briscoe, 32 Wn.2d at 366. On

the other hand, on appeal Hopkins cites a case, Gregoire v. City of Oak Harbor, 170


        3Jury instruction 13 states: "Contributory negligence is negligence on the part of a person
claiming injury or damage that is a proximate cause of the injury or damage claimed."


                                                   12
No. 73147-5-1/13


Wn.2d 628, 244 P.3d 924 (2010), which may arguably cut in the opposite direction in

this case. We leave it to the trial court on remand to reconcile whether on the facts

developed at trial, an instruction on contributory negligence should be given.

      We reverse the judgment on the verdict and remand for a new trial.




                                             SrrJ^'^-V
WE CONCUR:




      ^X,X                                        ^JCey?




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