                                                                                                                  FILED
                                                                                                             COURT OF APPEALS
                                                                                                                DIVISION II
                                                                                                         ZOI5 APR 28
                                                                                                                     M18: 38
                                                                                                         STATOF ;        NGTOIN
                                                                                                         BY
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                      DIVISION II

    N. L.,                                                                            No. 45832 -2 -II


                                        Appellant,


             v.



    BETHEL SCHOOL DISTRICT,                                                       PUBLISHED OPINION


                                        Defendant




             SUTTON, J. —         NL1 appeals the superior court' s summary judgment dismissal of her

negligence        claim against     Bethel School District ( BSD).          NL sued BSD after she was sexually

assaulted by a registered sex offender BSD student, Nicholas Clark, while the two were off school

grounds. NL has asked us to determine whether BSD, which knew of Clark' s sex offender status,


owed a duty of care to protect NL and, if so, whether as a matter of law NL' s sexual assault was

within the general field of danger that BSD could have or should have reasonably anticipated. We

hold that (1) BSD owed a duty of reasonable care to protect NL and monitor Clark, and (2) genuine

issues of material fact exist as to whether BSD breached its duty and whether that breach was a

proximate cause of NL' s injury. We reverse and remand.




1
    We   use   initials in this   opinion   to   protect   the confidentiality   of the juvenile involved.
No. 45832 -2 -II



                                                          FACTS


                                     I. CLARK' S INITIAL CONTACT WITH NL


            In April 2007, NL,   age    14,   attended eighth grade at   Bethel Junior High School.      Clark,


age   18,   attended   the twelfth   grade at   Bethel High School.    Both    schools were part of   BSD. The


track   and   football fields link the two      school campuses    together.   Clark and NL were members of


their   respective school' s   track teams.      Both track teams held practices on the same track field at


the same time at the end of the school day during track season.

            At the end of April, a mutual friend introduced NL to Clark while they were on the track

field for team practice. Clark lied to NL about his age, telling her that he was 16 years old. Clark

and NL exchanged cell phone numbers and began sending text messages to each other that day.

            The day after meeting NL, Clark urged her to skip track practice to go to nearby Burger

King for lunch with him. Once in the car, Clark told NL he had forgotten something at home and

needed to retrieve it. NL went into the house after Clark invited her inside, and once they were

inside his bedroom Clark sexually             assaulted   NL. Clark returned NL to school so she could catch


the school bus. NL told a friend that she had had sex with Clark and that information reached the

junior high school       who notified    the    police.   A year later, in July 2008, Clark pleaded guilty to

second degree assault and to failure to register as a sex offender.




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No. 45832 -2 -II



                                  II. BSD' S RECORDS ON CLARK


       Clark attended school within BSD from kindergarten through twelfth grade. BSD' s records

show that it disciplined Clark more than 78 times and suspended him on 19 separate occasions.2

BSD documented Clark' s sexually inappropriate conduct in seventh, eighth, and ninth grades.

During Clark' s ninth grade year, Clark grabbed a girl in the hallway, kissed her on her mouth and

breast area, grabbed her buttocks, and pulled her pelvis into him. Clark was convicted of attempted


indecent liberties due to this conduct, and BSD suspended him for the remainder of the school year

over this incident. As part of Clark' s sentence, he was put on probation for 12 months and required

to register as a level one sex offender, which he did.


        Following his conviction and registration as a sex offender, Clark continued to engage in
disruptive and inappropriate conduct at school. Two months after BSD received notice of Clark' s

sex offender status, while Clark was still on probation in his tenth grade year, he sexually assaulted

a female student on the bus. In the twelfth grade, Clark physically assaulted one student, verbally

harassed another student, yelled obscenities in class, went inside the girl' s bathroom, assaulted two

students on two different occasions, and left class and did not return.




2 BSD' s original file on Clark has been destroyed. Because it received a pre -suit Public Records
Act request, BSD scanned Clark' s entire file and returned it to the High school, which retained the
file in accordance with its retention schedule. The file was later shredded in accordance with that
retention schedule   because the high   school was not   instructed to   preserve   the   file. NL received
the scanned version in April 2012. Some of the documents were not readable. See Clerk' s Papers
 CP) at 457 -486.




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No. 45832 -2 -II




                                           III. BSD' S MONITORING OE CLARK


         Wanda Riley -Hordyk served as the high school' s principal while Clark was a student there.

On December 7, 2004, Riley -Hordyk received notice from Pierce County that Clark was a level

one registered sex offender.              B SD policy required Riley -Hordyk to inform Clark' s teachers and

other personnel of his sex offender status,            but   she never    did   so.'   Riley -Hordyk did not tell the high

school' s teachers the names of any registered sex offenders in attendance; she told them only that

some   students    were     registered       sex   offenders "   but [   she   was]    not   at   liberty   to [ disclose those


students']     names."    CP   at   333.    BSD' s Assistant Superintendent, Michael Brophy, testified that it

is " absolutely best practice" and consistent with written policy for the principal to tell the registered
sex offender' s teachers, who come into contact with that student regularly, about the student' s

status. CP at 394.


          BSD did not have a specific policy requiring that the athletic coach of a registered student

sex offender be informed of the student' s status if that sport involved the student sex offender


intermingling     with younger students.             If a coach were a certified teacher, it may have been the

responsibility of the principal to disclose the name to the coach as well, but Brophy testified that

was not a " solid practice"          at   the time. CP at 395 -96.       Clark' s track coach, a certified teacher, did


not recall Riley -Hordyk informing him of Clark' s sex offender status nor of any other student' s




  BSD policy #3143 mandates principals to inform teachers of sex offender registration as follows:
 District Notification       of     Juvenile Offenders:       A court will notify the common school in which a
student   is   enrolled   if the    student   has been   convicted ...  for any of the following offenses: a sex
offense ....      The principal must inform any teacher of the student and any other personnel who
should    be   aware of   the information."         CP at 335.



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No. 45832 -2 -II




sex offender status.     Nor did Riley -Hordyk inform the junior high school track coach that Clark

was a registered sex offender.


           In 2007, BSD did not have any established policy or procedure for monitoring students

who were registered sex offenders. Riley -Hordyk testified that she had an " unwritten" process in

place to monitor student sex offenders that included a meeting between the counselor for the

student sex offender and        the   assistant principals who are          involved in monitoring       students.      CP at


319 -330. None of the other high school or BSD administrators were aware of or involved in this

process, including BSD' s Assistant Superintendent Brophy; BSD' s Athletic Director and Director

of Campus Safety, Dan Heltsley; or the high school' s other assistant principals.

           Riley -Hordyk did not routinely formulate a safety plan procedure with registered sex

offenders, but she met with the sex offender students individually to review the high school' s code

of conduct and had them affirm by their signature that those students ( 1) knew that the school was

aware of his or her offender status, and ( 2) understood the code of conduct. BSD did not have a

policy that required school administrators to formulate safety plans with sex offender students.

Riley -Hordyk did not create a written safety plan for supervising Clark during his probation in
tenth grade or after she received notice of Clark' s registration as a sex offender.

                                                     IV. PROCEDURE


           NL sued BSD, alleging negligence because BSD had a duty to protect her from the

dangerous propensities of a fellow student and it breached that duty by failing to monitor Clark.

BSD moved for summary judgment and dismissal. In opposition to BSD' s motion, Judith Billings,

former Washington State Superintendent of Public Instruction, provided unrebutted expert opinion


on   the   standard of care   for   a school   district, its   duty to   monitor and   develop   a   safety   plan   for Clark,
No. 45832 -2 -II



and    inform    administrators of      his   sex offender status       to   protect   its   students.   Billings opined that


  b] ut for the indifference and inaction of Bethel School District, NL would more probably than

not, not      have been taken     by    Nicholas Clark to his home, [            sexually assaulted] and suffered the

documented,        extensive consequence of          that   event."    CP at 303 ( capitalization omitted).


          The superior court granted BSD' s motion, ruling that ( 1) BSD' s duty did not extend to

NL' s harm because the harm occurred off school grounds, and ( 2) the harm was not reasonably

foreseeable as a matter of law. NL appeals.


                                                        ANALYSIS


           We review an order granting summary judgment de novo and perform the same inquiry as

the   trial   court.   Durland   v.   San Juan   County,      182 Wn.2d 55, 69, 340 P. 3d 191 ( 2014).             Summary

judgment is appropriate where there are no genuine issues of material fact and the moving party is

entitled      to judgment   as a matter of      law. CR 56( c).        We view all facts and inferences in the light


most favorable to the nonmoving party. Kok v. Tacoma Sch. Dist. No. 10, 179 Wn. App. 10, 17,

317 P. 3d 481 ( 2013),       review     denied, 180 Wn.2d 1016 ( 2014).                     To prove a negligence claim, a


plaintiff must show (       1) that the defendant       owed a        duty   to him    or    her, ( 2) the defendant breached


that   duty, ( 3) injury, and ( 4) a proximate cause between defendant' s breach and plaintiff s injury.

Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P. 3d 387 ( 2013).


              NL argues that the trial court erroneously granted BSD summary judgment because she

presented sufficient        evidence     that ( 1)   BSD owed a duty of reasonable care to protect her and

monitor Clark, and ( 2) genuine issues of material fact existed as to whether BSD breached its duty

to protect her and whether BSD' s breach was a proximate cause of her injury. We agree.




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No. 45832 -2 -II




                                                 I. DUTY AND BREACH


           The existence of a legal duty is a question of law that we review de novo. N.K. v. Corp. of

President    Bishop,     175 Wn.   App.   517, 525, 307 P. 3d 370 ( 2013), review denied, 179 Wn. 2d. 1005


 2013).     Whether a defendant breached its duty is generally a question of fact. Hertog v. City of

Seattle, 138 Wn.2d 265, 275, 979 P. 2d 400 ( 1999).                 Admissible expert opinion testimony on an

ultimate issue of fact is sufficient to create an issue as to that fact, precluding summary judgment.

J.N. v. Bellingham Sch. Dist., 74 Wn. App. 49, 60 -61, 871 P. 2d 1106 ( 1994).

           When a student is at 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. J.N., 74 Wn. App.

at   57.   A school district has a duty to exercise reasonable care, as a reasonably prudent person

would under      the   circumstances,     to   protect students   in its custody.       McLeod v. Grant County Sch.

Dist., 42 Wn.2d 316, 320, 255 P. 2d 360 ( 1953); Briscoe v. Sch. Dist. 123, 32 Wn.2d 353, 362,


201 P. 2d 697 ( 1949).       Because a school district holds mandatory custody of a child, it has a duty

to protect its students from harm by a third party that the district ( 1) knows or has reason to know

that it has the ability to     control    the third party'    s conduct, and (   2) '   knows or should know of the


necessity     and   opportunity '    to    exercise    that    control.   McLeod, 42 Wn.2d          at   320 ( quoting


RESTATEMENT         OF   TORTS § 320 ( 1934)).      In determining whether BSD owed a duty to NL, we look

at ( 1) the relationship between BSD and its students, NL and Clark, and ( 2) the general nature of
the risk.4 McLeod, 42 Wn.2d at 319.




4 A duty to protect another from sexual assault by a third party may arise where the defendant has
a special relationship with the tortfeasor that imposes a duty to control the third person' s conduct
or it may arise where the defendant has a special relationship with the other which gives the other
a right    to protection. RESTATEMENT OF TORTS § 315.
No. 45832 -2 -II




           A school district' s duty to exercise reasonable care extends only to foreseeable risks of

harm. J.N., 74 Wn.          App.     at   57.        A school district' s duty " is 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.      The particular sequence of events that led to the


plaintiffs injury need not be foreseeable for a defendant school district to owe a duty to its

students.        McLeod, 42 Wn.2d               at    322.       Foreseeability is a question for the jury unless the

circumstances of the injury are " so highly extraordinary or improbable as to be wholly beyond the

range of       expectability." McLeod, 42 Wn.2d                   at   323. "` If ... there is room for reasonable difference


of opinion as to whether such act was negligent or foreseeable, the question should be left to the

jury. "'   McLeod, 42 Wn.2d          at   323 ( quoting RESTATEMENT of TORTS § 453 cmt. a ( 1934)).


           A school district' s knowledge of one of its student' s dangerousness may give rise to a jury

question of foreseeability. Here, BSD insists that its duty does not extend to Clark' s sexual assault

of NL committed off school grounds and the sexual assault was not within the general field of

danger that BSD          could   have     anticipated.           We disagree. Our Supreme Court in McLeod held that


the fact that the harm           was caused           by    an   intervening     intentional   criminal   act   did   not "   of itself


exonerate a       defendant from        negligence."             McLeod, 42 Wn.2d       at   320. Rather, it was " a fact to be


considered        in   determining   whether           such act was          reasonably foreseeable."      McLeod, 42 Wn.2d


at   321. "[    T] he pertinent inquiry is not whether the actual harm was of a particular kind which was

expectable.        Rather, the question is whether the actual harm fell within a general field of danger

which      should      have been     anticipated."            McLeod, 42 Wn.2d at 321; see also Christen v. Lee,


 113 Wn.2d 479, 492, 780 P. 2d 1307 ( 1989).




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No. 45832 -2 -II



         This case is analogous to J.N., where Division One of this court held that JN, a first grader


who was sexually assaulted at recess by a fourth grader, presented a genuine issue of material fact

by demonstrating that the school district knew about the fourth grader' s dangerousness.

J.N., 74 Wn.    App.   at   60.   Based on reports of assaultive and aggressive behavior toward other


students, sexual language, and " some kind of trauma" that the fourth grader had experienced, the

school   knew that the fourth      grader   had the " propensity to    assault."   J.N., 74 Wn. App. at 52 -53,

60. "[   W] here 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."   J.N., 74 Wn. App.   at   60. Thus,


even if the fourth grader' s sexual assault was outside the general field of danger, summary

judgment was inappropriate because J. N. presented sufficient evidence that the school district had

notice of the possibility of the specific harm inflicted. J.N., 74 Wn. App. at 60.

         Like the school district in J.N., BSD owed NL a duty of reasonable care to protect her from

reasonably foreseeable harm.          NL presented evidence that BSD had a lengthy school discipline

record on Clark with multiple instances of sexual conduct, including the incident that led to Clark' s

registration as a sex offender. Clark' s sexual and assaultive behavior continued into the eleventh

and twelfth grades, leading up to his sexual assault of NL. This evidence suggests that BSD was

on notice of the possibility for the specific harm to NL, and BSD could have and should have

reasonably    anticipated    that Clark   would reoffend.      Thus, it had a duty to reasonably protect NL

from Clark' s reasonably foreseeable acts.

          In contrast, in Kok, we held that the school district' s duty to exercise reasonable care did

not extend to a student who was fatally shot at school by another student because the school district


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No. 45832 -2 -II



could not   have reasonably         anticipated     the harm that occurred. Kok, 179            Wn.   App.       at   13 - 14.   At


the time of the shooting in that case, none of the offending student' s teachers or other professionals

who had evaluated or treated the offending student had notified the school district that he was at

risk of   assaulting    or   killing   another student at school.          Kok, 179 Wn.      App.     at   20.    Neither the


offending student' s behavior at school nor his medical records indicated " any assaultive behavior

or   tendencies."   Kok, 179 Wn. App. at 20.

          A school district does not owe a duty as a matter of law to a student when the nexus between

the harm    and   the   school   district' s   alleged negligent action      is too   remote.    Coates v. Tacoma Sch.


Dist., 55 Wn.2d 392, 396 -97, 347 P. 2d 1093 ( 1960);                Scott v. Blanchet High Sch., 50 Wn. App. 37,

44 -45, 747 P. 2d 1124 ( 1987). In Coates, our Supreme Court held that a defendant school district


did not owe a duty of reasonable care when a student was involved in an accident on her way to a

club initiation that was connected to the school only through an advisor. Coates, 55 Wn.2d at 394-

95.    Similarly, in Scott, Division One of this court held that a defendant school district did not owe

a duty to a student who engaged in a romantic relationship with a teacher because the alleged

sexual activities between the teacher and student did not occur at school, during afterhours

counseling, or with the school' s knowledge or consent. Scott, 50 Wn. App. at 41 -42, 45.

          This case is more like J.N., where the nexus between the school district' s failure to take

action in response to its knowledge of potential danger and the plaintiff' s specific injury were

closely   connected and not            too   remote.   J.N., 74 Wn.    App.    at   60.   Unlike the defendant school


districts in Coates, Scott and Kok, who did not have any knowledge to reasonably foresee the

plaintiff student' s     harm, BSD had          a   lengthy   discipline   record of   Clark'   s sexual    behavior.        BSD


received notice of       Clark' s   sex offender status more         than two   years     before he   assaulted         NL. Yet




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No. 45832 -2 -II




BSD took no action to monitor Clark or prevent further sexual assaults by Clark after receiving

that notice with knowledge of Clark' s other instances of sexual conduct. Clark' s sexual assault of


NL was closely related to and of the same character as BSD' s knowledge of Clark' s sexual conduct

at school.      NL' s harm is not too remote from BSD' s inaction to conclude that BSD did not owe

NL a duty as a matter of law. We do not need to decide whether the specific sequence of events

that resulted in NL' s harm was reasonably foreseeable. McLeod, 42 Wn.2d at 322. NL presented

sufficient evidence to have a jury determine whether Clark' s risk to reoffend was within the general

field   of   danger that BSD         could   have   or should   have reasonably foreseen.           Thus, the question of


whether NL' s harm was foreseeable is a question for the jury.

             Furthermore, viewing the facts in a light most favorable to NL, she also presented evidence

of a genuine issue of material fact as to whether BSD breached its duty in the way it monitored

Clark. Riley -Hordyk did not formulate a safety plan with Clark after BSD received notice of his
sex   offender registration status;          BSD did     not   have   a   policy requiring her to do       so.   BSD did not


have an established policy for monitoring registered sex offender students in 2007, either. Even

though BSD policy instructed a principal to inform teachers of sex offender registration, Riley -

Hordyk did       not   do   so.   The junior high school and high school track teams practiced on the same


field that adjoined both schools at the same time of day, but Riley -Hordyk did not inform the junior

high    of   Clark'   s sex offender status.        Riley -Hordyk also failed to inform Clark' s track team coach

at the high school about Clark' s status. NL' s expert, Billings, testified on the ultimate issue of fact

here that BSD had                                                         develop                       for Clark.   Billings'
                             a    responsibility to    monitor and                  a   safety   plan




unrebutted expert opinion itself is sufficient to preclude summary judgment. J.N., 74 Wn. App. at

 60 -61.     Thus, the trial court should not have granted BSD' s summary judgment motion.



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No. 45832 -2 -II



                                                               II. PROXIMATE CAUSE


         NL also argues that she presented sufficient evidence to preclude summary judgment that

BSD' s breach was a proximate cause of her injury. We agree.

          A school district is liable only if its breach of a duty was a proximate cause of a plaintiff s

injuries. Travis             v.   Bohannon, 128 Wn.               App.     231, 240, 115 P. 3d 342 ( 2005). Proximate cause has


two    elements: (           1) Cause         in fact,   and (   2) legal    causation.     Lowman, 178 Wn. 2d               at   169. Cause in


fact   or "   but for"            causation refers            to the "    physical connection between an act and an injury. ".

Hartley       v.   State, 103 Wn.2d 768, 778, 698 P. 2d 77 ( 1985).                             Cause in fact is usually a question for

the trier of fact. Hartley, 103 Wn.2d at 778.

          Legal causation is grounded in policy considerations as to how far the consequences of a

defendant'         s   action       should         extend.       Lowman, 178 Wn.2d                at    169.     To determine whether a


defendant' s breach of duty is too remote to hold the defendant liable as a matter of law, we evaluate

  mixed        considerations                 of   logic,     common       sense,   justice, policy,           and   precedent.'"         Lowman,


178 Wn.2d              at   169 ( quoting           Hartley,     103 Wn.2d         at   779).    An injury may have more than one

proximate cause and a jury is to determine whether a third party' s act is a superseding or a

concurring cause. Travis, 128 Wn. App. at 242. The intervening act of another person may be an

additional cause of the plaintiffs injury and does not necessarily relieve the defendant of liability

if the harm            was   foreseeable from the defendant'                   s original       breach.    Travis, 128 Wn. App. at 242.

The    existence of           legal      causation       is   a question of    law. Taylor        v.   Bell,         Wn.   App. ,         340 P. 3d


951, 960 ( 2014).


          Taken in a light most favorable to NL, NL presented sufficient evidence to create a genuine


issue   of material               fact   as   to   whether     BSD'   s   breach    was a proximate cause of               injury   to   her. As to




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No. 45832 -2 -II




cause in fact, NL presented evidence that BSD had not adopted any policies to create safety plans

or to specifically monitor the activities of registered sex offender students in its schools. Contrary

to BSD'   s   policy,   Riley -Hordyk failed          to inform Clark' s teachers of Clark' s status.                 NL also


presented Billings' expert opinion that BSD' s failure to adopt policies to monitor and supervise

                                                                                                               5
sex   offenders    attending their         schools   was   a proximate          cause   of   NL' s injuries.       As to legal


causation, we cannot       say that the harm to NL              was "` so    highly   extraordinary   or   improbable '   that


no    reasonable   person    could     be    expected      to   anticipate      it.   Seeberger v. Burlington N. R.R.,


138 Wn.2d 815, 823, 982 P. 2d 1149 ( 1999) (                quoting McLeod, 42 Wn.2d at 323.)

         We hold that ( 1) BSD owed a duty of reasonable care to protect NL and monitor Clark,

and ( 2) genuine issues of material fact exist as to whether BSD breached its duty and whether that

breach was a proximate cause of NL' s injury. We reverse and remand.




 We concur:




5"
     But for the indifference        and   inaction   of [BSD],        [   NL] would more probably than not, not have
been taken by Nicholas Clark to his home, raped and suffered the documented, extensive
consequence of      that   event."    CP at 303 ( capitalization omitted).



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