                                                                                  CO     -




             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


AMANDA BRADY, an individual and            )      No. 70362-5-1
legal guardian for MALLORIE                )
BROUSSARD, a minor child,                  )      DIVISION ONE
                                           )
                           Appellant,      )
                                           )
                v.                         )
                                           )      UNPUBLISHED OPINION
WILLIAM REINERT, an individual,            )
EVERGREEN SCHOOL DISTRICT, a               )
local government entity operating with     )
the State of Washington,                   )
                                           )
                           Respondents. )         FILED: August 12, 2013
          Schindler, J. — M.B. is a student at Wy'east Middle School. William Reinert

struck M.B. while she was crossing the street in front of Crestline Elementary School.

Amanda Brady, individually and as the legal guardian of her child M.B., filed a personal

injury lawsuit against Reinert and the Evergreen School District. Brady appeals

summary judgment dismissal of claims against the Evergreen School District. We

affirm.

                                           FACTS


          The facts are undisputed. Crestline Elementary School is part of the Evergreen

School District and is located at 13003 Southeast 7th Street in Vancouver.
No. 70362-5-1/2


       Most students who attend Crestline ride the bus. There is a school patrol on duty

at two crosswalks in front of the school on Southeast 7th Street when the school day

begins at 8:15 a.m., and after dismissal at 2:50 p.m. The school patrol consists of a

supervising adult traffic monitor, a second adult traffic monitor, and 10 students.

       The dismissal bell rings at 2:50 p.m. The school patrol is on duty at the

crosswalks from 2:45 p.m. until 3:00 p.m. when the last school bus leaves. The

supervising adult traffic monitor dismisses the patrol after the last bus leaves and there

are no children in sight waiting to cross the street. Parents of the school patrol students

are expected to pick their children up by 3:00 p.m.

       Wy'east Middle School is located near Crestline at 1112 Southeast 136th

Avenue. M.B. attends Wy'east Middle School. The school day at Wy'east Middle

School ends at 2:30 p.m. M.B. lived directly across Southeast 7th Avenue on Southeast

131st Court.

       On November 13, 2009, Theresa Oliver-Philossof was the supervising adult

traffic monitor in charge of the school patrol. At approximately 3:00 p.m., Oliver-

Philossof dismissed the school patrol. The adult traffic monitor signed out at 3:04 p.m.

       At approximately 3:07 p.m. while driving his car, William Reinert struck M.B. as

she was in the crosswalk in front of Crestline Elementary, walking across Southeast 7th

Street. Reinert admitted that he "failed to keep a proper lookout." Reinert told the

police that he "just spaced." The police cited Reinert for failure to yield to pedestrians in
a crosswalk.

       Amanda Brady, individually and as the legal guardian of M.B., filed a personal

injury lawsuit against Reinert and the Evergreen School District (District).
No. 70362-5-1/3


       The complaint alleged the District was negligent in supervising and operating the

school patrol. The complaint states, in pertinent part:

       5.2.   Defendant, EVERGREEN SCHOOL DISTRICT, was negligent in
              one or more of the following ways:
              a.     Failing to establish and institute policies and/or procedures
                     for the effective and safe operation of the School Safety
                     Patrol.
              b.     Failing to properly train and/or supervise the adult Traffic
                     Safety Monitor delegated with the daily supervision and/or
                     operation of the School Safety Patrol.
              c.     Failing to have the School Safety Patrol in place and
                     operating at 3:06 p.m., 16 minutes after school let out when
                     children would normally be crossing SE 7th Street.
       The District filed a summary judgment motion arguing that it had no duty to a

Wy'east Middle School student who was crossing the street after the Crestline school

patrol was dismissed. The District asserted that while State law authorized the

operation of a school patrol, the school has discretion to decide when the school patrol

is on duty. In support, the District submitted the depositions of Oliver-Philossof and

Crestline Principal Bobbi Hite. Hite testified, in pertinent part:

              Q.      So it's really the dispatch of the buses that dictate when [the
       safety patrol] leave[s]?
              A.      Correct.
              Q.      Why is that?
             A.       The majority of our students are out and gone for the day,
       and so it's a reasonable expectation that buses are gone, kids have
       moved out and so traffic monitors and kids move in to go home as well.

Oliver-Philossof testified that "when the last bus left and there [are] no visible children

[in] sight or adults in the area that needs to be crossed, then [the safety patrol] can be

released."

       In opposition, Brady submitted the declaration of accident investigator Stephen

Capellas and Wy'east Middle School Principal Gary Tichenor. Capellas testified that
No. 70362-5-1/4



when the 20 m.p.h. speed limit lights near the school are flashing, Crestline is an

" 'active' school zone." Capellas said the speed limit lights flash from 2:45 p.m. until

3:10 p.m. Tichenor testified that during the past 17 years, approximately 10 pedestrians

were hurt walking to or from Wy'east Middle School.

       The trial court granted the District's motion for summary judgment. The court

ruled that the District did not have a "legal duty ... to have crossing guards out at the

time of the incident." The court dismissed the claims against the District. Brady

appeals.

                                        ANALYSIS


       Brady argues the trial court erred in granting summary judgment dismissal.

Brady asserts the District had a duty to protect M.B. from foreseeable harm and to

supervise and schedule the operation of a school patrol at the crosswalk where the

accident occurred.

       We review summary judgment de novo. Hartley v. State, 103 Wn.2d 768, 774,

698 P.2d 77 (1985). Summary judgment is appropriate where there is no genuine issue

of material fact and the moving party is entitled to summary judgment as a matter of

law. CR 56(c).

       To prevail on a negligence claim, the plaintiff must prove (1) a duty owed by the

defendant to the plaintiff, (2) breach of that duty, and (3) injury proximately caused by

thebreach. Hansen v. Friend. 118 Wn.2d 476, 479, 824 P.2d 483 (1992). The

existence of a duty is a question of law that we review de novo. Sheikh v. Choe, 156

Wn.2d 441, 448, 128 P.3d 574 (2006).
No. 70362-5-1/5



        Schools have a duty to protect students in their custody from reasonably

foreseeable harm. Travis v. Bohannon, 128 Wn. App. 231, 238, 115 P.3d 342 (2005).

Accordingly, the school district has a duty to take certain precautions to protect students

in its custody from reasonably foreseeable dangers. Peck v. Siau, 65 Wn. App. 285,

292, 827 P.2d 1108 (1992). A school district is also liable where "a school supervises

and exercises control over extracurricular activities." Travis, 128 Wn. App. at 238.

Here, there is no dispute that M.B. did not attend Crestline Elementary and was not

under the supervision or control of Crestline Elementary at the time of the accident.

        Brady relies on Chhuth v. George, 43 Wn. App. 640, 719 P.2d 562 (1986), to

argue the District has a common law duty to station school patrol or traffic safety

monitors "at the designated crosswalks when children would normally be present or

when the cross-walks are considered within an 'active school zone.'" But the court in

Chhuth did not address the existence ofa common law duty to operate a school patrol.1
        In Chhuth, a seven-year-old was fatally injured when a car hit him as he crossed

the street on his way home from school. Chhuth, 43 Wn. App. at 641-42. The child's

parents sued the school district and the driver of the car. Chhuth, 43 Wn. App. at 642.

The parents argued the school district was negligent (1) in failing to have procedures to

instruct and supervise students to use school buses, and (2) in failing to post crossing

guards at the street where the child was killed when it knew there were students who

did not ride the bus. Chhuth, 43 Wn. App. at 649.


        1 Barnes v. Bott. 571 So. 2d 183 (La. Ct. App. 1990), is also distinguishable. In Barnes, a student
was killed when he crossed the street at an intersection usually supervised by a crossing guard, but the
intersection was left unattended on the day of the accident. Barnes. 571 So. 2d at 184. The Louisiana
court held that by participating in and accepting the benefits of a crossing guard program run by the city,
"the School Board voluntarily assumed the duty of verifying that the crossing guard would be present at
designated intersections during her normal duty hours." Barnes. 571 So. 2d at 186. Here, unlike in
Barnes, the accident did not occur "during . . . normal duty hours."
No. 70362-5-1/6


       The jury found that the driver was not negligent. Chhuth, 43 Wn. App. at 642.

The jury found that the school district and the child's father were negligent but their

negligence was not a proximate cause of the child's death. Chhuth, 43 Wn. App. at

642. The jury also found that the child was negligent and the child's negligence was a

proximate cause of his death. Chhuth, 43 Wn. App. at 642. The trial court ruled as a

matter of law that the negligence of the school district and the father proximately caused

the child's death, and granted the motion for a new trial to apportion damages among

the child, his father, and the school district. Chhuth, 43 Wn. App. at 642-43.

       On appeal, we reversed the trial court's ruling that the negligence of the school

district proximately caused the child's death because "[i]t is not possible to determine

from the special verdict the basis for the jury finding that the District was negligent."

Chhuth. 43 Wn. App. at 650.

       [T]he basis for the jury finding that the Districtwas negligent. . . . could be
       negligent implementation and supervision of bus procedures, or breach of
       duty by the principal, first grade teacher or the school bus supervisor. On
       the other hand, the basis of negligence could have been failure to supply
       crossing guards. But having found negligence, and that such negligence
       was not the proximate cause of [the childj's death, the jury in substance
       concluded [the childj's own intervening negligence was the sole proximate
       cause.



Chhuth, 43 Wn. App. at 650.

       Brady also contends that because the "scope of a school's legal duty" is

determined by the nature of the risk, the District had a duty to operate the school patrol

at the crosswalk at the time of the accident. See Travis, 128 Wn. App. at 238. But the

dispositive question is the existence of a duty, not the scope of the duty.

       Next, Brady contends the District breached the statute and regulations

authorizing school districts to establish school patrols. See RCW 46.61.385; WAC 392-
No. 70362-5-1/7



151-020.2 Specifically, Brady claims that the record establishes the District did not
comply with the WAC requirement to periodically review school patrol programs. WAC

392-151-020 provides, in pertinent part:

           The following suggested procedures may assist schools and
      employees or agents reduce the potential liability in connection with the
      operation of a school patrol:
             (1) Establish reasonable rules and regulations regarding the
      supervision and control of the school patrols.

              (5) Establish a policy which sets forth specific physical and other
      criteria for selecting school patrol members and providing adequate
      training.
              In addition, schools should periodically conduct a complete review
      of the entire school patrol program, including the following:
              (a) The selection of supervisors
              (b) The selection of student and adult members of the patrol
              (c) The training of both supervisors and patrol members
              (d) The determination of the streets which are to be used and
      those which are not to be used
            (e) The equipment needed
            (f) The time schedule when the patrol will be on duty
            (g) The special precautions to be observed in inclement weather
      and during hours of semidarkness.

       Brady also cites WAC 392-151-020(5)(f) to argue that the school must establish

rules and regulations for "[t]he time schedule when the patrol will be on duty." But WAC

392-151-020 only sets forth "suggested procedures" for the operation of school patrols.

Further, WAC 392-151-020 does not address the length of time a patrol should be on




      2RCW 46.61.385 states, in pertinent part:
      The superintendent of public instruction, through the superintendent of schools of any
      school district, or other officer or board performing like functions with respect to the
      schools of any other educational administrative district, may cause to be appointed
      voluntary adult recruits as supervisors and, from the student body of any public or private
      school or institution of learning, students, who shall be known as members of the "school
      patrol" and who shall serve without compensation and at the pleasure of the authority
       making the appointment.

               School districts, at their discretion, may hire sufficient numbers of adults to serve
       as supervisors.

                                                     7
No. 70362-5-1/8


duty. Here, the undisputed evidence establishes the school patrol was on duty five

minutes before dismissal at 2:50 p.m. until 3:00 p.m.3
       In the alternative, Brady claims that the District assumed a duty to supervise the

crosswalk at the time of the accident. "[Ljiability can arise from the negligent

performance of a voluntarily undertaken duty." Folsom v. Burger King, 135 Wn.2d 658,

676, 958 P.2d 301 (1998). Brady argues the District voluntarily agreed to supervise the

crosswalk on Southeast 7th Street after the school day ended. But again, there is no

dispute that the accident occurred after the school day ended and the school patrol was

dismissed.


       We affirm the dismissal of Brady's claims against the District.




                                                       S^CU^g&-.,
WE CONCUR:




     Ae^td^ (L .4,[

        3Brady also asserts the District violated the requirement to adopt "[suggested route plans."
WAC 392-151-025. Brady argues this violation is evidence of existence and breach of common law duty.
Brady points to the testimony of Hite and Tichenor that neither school had a suggested route plan to
argue the District violated WAC 392-151-025. Buta regulation requiring the District to develop suggested
walking routes is not evidence that there is a common law duty to supervise crosswalks. WAC 392-151-
025 provides:
        Suggested route plans shall be developed for each elementary school that has students
        who walk to and from school. It shall recommend school routes based on considerations
        of traffic patterns, existing traffic controls, and other crossing protection aids such as
        school patrols. These route plans shall limit the number of school crossings so that
        students move through the crossings in groups, allowing only one entrance-exit from
        each block to and from school. The route to school plan shall be distributed to all
        students with instructions that it be taken home and discussed with the parents.

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