IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BONNIE I. MEYERS, as personal representative of the estate of GABRIEL DIVISION ONE LEWIS ANDERSON, a deceased minor, age 15, and on behalf of the No. 79655-1-I beneficiaries of the estate; and BRANDI K. SESTROM and JOSHUA PUBLISHED OPINION ANDERSON, individually,
Appellants,
V.
FERN DALE SCHOOL DISTRICT, a political subdivision of the State of Washington,
Respondent,
and
WILLIAM KLEIN and JANE DOE KLEIN and the marital community comprised thereof, FILED: February 10, 2020 Defendants.
DWYER, J. — Following the death of high school student Gabriel
Anderson, Bonnie Meyers, as personal representative of Anderson’s estate, filed
suit against the Ferndale School District (Ferndale) and William Klein. Meyers
asserted that Anderson’s death was the result of Ferndale negligently removing
Anderson from the safety of his high school campus. Ferndale’s actions, Meyers
asserted, exposed Anderson to the negligent driving of Klein, who fell asleep No. 79655-1 -1/2
behind the wheel and drove his motor vehicle up onto a sidewalk, killing
Anderson.
The trial court granted Ferndale’s subsequent motion for summary
judgment and dismissed Meyers’ claims against Ferndale, concluding—as a
matter of law—that the collision was not reasonably foreseeable and that
Ferndale therefore had no duty to take steps to prevent its occurrence. In its
order, the trial court improperly based its determination of foreseeability on the
specific harm that occurred, rather than on the general field of danger created
when Ferndale staff took Anderson off campus for a walk along a public
roadway. Because evidence in the record establishes a genuine issue of
material fact regarding whether it was foreseeable that Anderson could be struck
by a motor vehicle while walking along a public roadway, we reverse.
Gabriel Anderson was a student at the Ferndale School District’s
Windward High School during the 2014-2015 school year. At Windward High
School, he was in teacher Evan Ritchie’s physical education class. On June 10,
2015, Ritchie decided to take Anderson’s class for a walk off the school’s
campus grounds.
Windward High School was ostensibly a modified closed campus school
and Ferndale had specific policies in place during the 2014-2015 school year
regarding taking students off campus on field trips or excursions. Ferndale
required teachers to obtain the permission of a student’s parent or guardian
before taking them off campus for a field trip or excursion. All parties agree that
2 No. 79655-1-113
Ritchie did not follow these policies prior to taking Anderson’s class off campus.1
Instead, Ritchie asserted that only minutes prior to the outing he sought and
obtained the approval of Windward High School’s then principal, Tim Kiegley, to
take his class for a walk off campus.2
Without securing any additional adult supervision, Ritchie then proceeded
to take his students off campus, walking west on the sidewalk along the north
side of West Smith Road past the school safety zone to a section of the road
where motor vehicles were permitted to travel at speeds of up to 40 miles per
hour. At times during the walk, some students were up to 200 meters away from
Ritchie. To return to the school, the students were explicitly granted permission
to cross West Smith Road to reach the south side of the road at locations other
than at designated crosswalks, and they did so.
To return to the school, the students crossed the street and walked along
the sidewalk on the south side of West Smith Road, with their backs to oncoming
traffic. At a point outside of the school safety speed zone, just before the
intersection of Graveline Road and West Smith Road, Anderson and several
other students were struck by William Klein’s sport utility vehicle. Klein had fallen
asleep at the wheel and driven off the road and onto the sidewalk. Anderson and
1 However, the parties dispute whether the policy was applicable to Ritchie’s decision to take his class out for a walk near the school. Ferndale and Ferndale’s witnesses assert that the policy did not apply to the outing Ritchie took his class on because it was not a field trip or an excursion. 2 The record contains inconsistent statements from Kiegley regarding how much
information Ritchie provided to him concerning where, exactly, Ritchie planned to take his class. Even in the portions of the record wherein Kiegley asserted that he knew about Ritchie’s planned walking path prior to the class’s departure, Kiegley did not properly identify the location of crosswalks along West Smith Road, asserting that there is a crosswalk on West Smith Road at the west end of the students’ walking path when there is none.
3 No. 79655-1-1/4
one other student were killed. Two other students were grievously injured.
Meyers subsequently sued both Klein and Ferndale, alleging that they had
acted negligently and that their negligence had resulted in Anderson’s untimely
death. Ferndale then moved for summary judgment dismissal of Meyers’ claims
against it on the grounds that (1) the collision that killed Anderson was not
foreseeable—thus Ferndale had no duty to take steps to prevent it—and (2) even
if Ferndale breached a duty, such breach was not the proximate cause of
Anderson’s death. The trial court agreed with Ferndale that the collision was not
foreseeable and issued an order granting summary judgment and dismissing
Meyers’ claims against Fernd ale on that basis.
Meyers appeals.
Meyers contends that the trial court erred by concluding that the collision
resulting in Anderson’s death was not foreseeable. This is so, Meyers asserts,
because the trial court improperly based its determination of foreseeability on the
specific harm that occurred, rather than on the general field of danger created
when Ritchie took Anderson off campus for a walk along a public roadway. In
response, Ferndale asserts that the trial court’s ruling did not actually dismiss
Meyers’ claims against it on the ground that injury to Anderson was
unforeseeable but, rather, because Ferndale’s actions were neither the cause in
fact nor the legal cause of Anderson’s death. Meyers has the better argument.
4 No. 79655-1 -1/5
A
We review de novo a trial court’s order granting summary judgment.
Greensun GrID., LLC v. City of Bellevue, 7 Wn. App. 2d 754, 767, 436 P.3d 397,
review denied, 193 Wn.2d 1023 (2019). We will affirm such an order only “if
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Woods View II, LLC v. Kitsap County, 188 Wn.
App. 1, 18, 352 P.3d 807 (2015). On review, we must “conduct the same inquiry
as the trial court and view all facts and their reasonable inferences in the light
most favorable to the nonmoving party.” Greensun Gm., LLC, 7 Wn. App. 2d at
767 (citing Pac. Nw. Shooting Park Ass’n v. City of Seciuim, 158 Wn.2d 342, 350,
144 P.3d 276 (2006)).
To prevail in this negligence suit, Meyers must show “(1) the existence of
a duty to [Anderson], (2) a breach of that duty, (3) a resulting injury, and (4) the
breach as the proximate cause of the injury.” N.L. v. Bethel Sch. Dist., 186
Wn.2d 422, 429, 378 P.3d 162 (2016) (quoting Crowe v. Gaston, 134 Wn.2d 509,
514, 951 P.2d 1118 (1998)). In this appeal, the parties contest only the issues of
duty and proximate cause.
B
Meyers primarily contends that the trial court erred by concluding that
Ferndale had no duty to protect Anderson against the collision that resulted in his
death. This is so, Meyers asserts, because the court applied the wrong legal
standard of foreseeability by requiring the specific collision to be foreseeable in
order for Ferndale to have a duty to protect Anderson. According to Meyers,
5 No. 79655-1 -116
Ferndale had a duty so long as the specific injury-causing event was within the
general field of danger created when Ritchie took Anderson off campus to walk
along a sidewalk next to a public roadway.3 We agree.
“Whether a duty exists is a question of law for the court.” N.L, 186 Wn.2d
at 429 (citing Aba Sheikh v. Choe, 156 Wn.2d 441, 448, 128 P.3d 574 (2006)).
“School districts have the duty ‘to exercise such care as an ordinarily responsible
and prudent person would exercise under the sameor similar circumstances.”
N.L, 186 Wn.2d at 430 (quoting Briscoe v. Sch. Dist. No. 123, 32 Wn.2d 353,
362, 201 P.2d 697 (1949)). While common law generally imposes no duty to
prevent a third person from causing physical injury to another, such a duty arises
when “a special relationship exists between the defendant and either the third
party or the foreseeable victim of the third party’s conduct.” Niece v. Elmview
Gm. Home, 131 Wn.2d 39, 43, 929 P.2d 420 (1997) (internal quotation marks
omitted) (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 227,
802 P.2d 1360 (1991)). Pertinently, “[s]chool districts have a custodial
relationship with their students—’[i]t is not a voluntary relationship.’ As a result,
the school district must ‘take certain precautions to protect the pupils in its
custody from dangers reasonably to be anticipated.” Hendrickson v. Moses
~ In response, Ferndale asserts that the trial court did not actually base its ruling on foreseeability in the context of duty but, rather, on legal causation. Ferndale is wrong. The trial court was very clear in its memorandum decision: “The Defendant school district here argues that the accident was not foreseeable, and further argues that the Plaintiffs cannot establish legal cause or proximate cause. The Defendants[] prevail on the argument of foreseeability.” That the trial court did not base its ruling on causation is made even clearer by the fact that it declined to sign an order proposed by Ferndale that explicitly stated that its actions were not the legal cause of the harm to Anderson. Instead, the order signed by the trial court is silent as to legal causation, referring only to its memorandum letter decision discussing foreseeability in the context of Ferndale’s duty.
6 No. 79655-1 -117
Lake Sch. Dist., 192 Wn.2d 269, 276, 428 P.3d 1197 (2018) (second alteration in
original) (citation omitted) (quoting McLeod v. Grant County Sch. Dist. No. 128,
42 Wn.2d 316, 319-20, 255 P.2d 360 (1953)). “As long as the harm is
‘reasonably foreseeable,’ a school district may be liable if it failed to take
reasonable steps to prevent that harm.” Hendrickson, 192 Wn.2d at 276 (citing
McLeod, 42 Wn.2d at 320).
When foreseeability is a question of whether a duty exists, it is a question
of law, but when foreseeability is a question of whether the harm is within the
scope of the duty owed, it is a question of fact for the jury. McKown v. Simon
ProlD. Gni, Inc., 182 Wn.2d 752, 764, 344 P.3d 661 (2015). Foreseeability is not
measured against the specific sequence of events leading to harm or against the
exact harm suffered. “[T]he question is whether the actual harm fell within a
general field of danger which should have been anticipated.” Hendrickson, 192
Wn.2d at 276 (alteration in original) (quoting McLeod, 42 Wn.2d at 321).
For example, in McLeod, our Supreme Court reversed the dismissal of
negligence claims against a school district in a case in which a 12-year-old
student was forcibly raped by fellow students during recess. 42 Wn.2d at 317.
The court refused to base its determination of foreseeability on whether it was
foreseeable that students would forcibly rape another student if left unsupervised
near an unoccupied dark room. McLeod, 42 Wn.2d at 321. Instead, the court
considered whether the harm was in the general field of danger, which it
considered to be “that the darkened room under the bleachers might be utilized
during periods of unsupervised play for acts of indecency between school boys
7 No. 79655-1 -1/8
and girls.” McLeod, 42 Wn.2d at 322.
The trial court herein misapplied this foreseeability standard by focusing
on the specifics of the collision in this case, rather than on the general field of
danger attendant to removing students from campus to walk along a sidewalk
adjoining a public roadway. In its memorandum decision, the trial court
concluded that Meyers had failed “to establish that this tragic accident was
foreseeable on the part of the Defendant school district.” The trial court stated
“[t]hat a driver would fall asleep in the middle of the day on a bright, sunny
afternoon, leave the roadway, and hit the students is not foreseeable for the
school district.” It further emphasized that Klein “did not see the students before
he hit them, as all parties agree that he had no recollection of the accident and
the accident itself resulted from him falling asleep at the wheel. There was
simply no time for teacher Ritchie to react, nor any time for the students to either.
Such an accident is not foreseeable.” Plainly, the trial court incorrectly focused
its foreseeability analysis on the specific injury-causing event herein.
Focusing on the more general field of danger, the record is replete with
evidence indicating that, at the very least, there is a question of fact for the jury
regard ing whether the harm to Anderson was foreseeable. First, even before
considering the record, it is common knowledge, and has been noted in case law
for decades, that cars do not always stay in their lanes; accidents happen. ~,
~ Ber~lund v. Siokane County, 4 Wn.2d 309, 320, 103 P.2d 355 (1940) (“[lIt is a well known fact that automobiles do, at times, for one reason or another,
forsake their lane of travel. . . . The records of every court abound with such
8 No. 79655-1 -119
instances. It cannot be held, as a matter of law, that such occurrences are so
highly extraordinary or improbable as to be wholly beyond the range of
expectability.”). Second, Meyers presented expert opinion evidence and
statistics from the National Highway Traffic Safety Administration confirming that
car accidents involving pedestrians are a common occurrence in the United
States. Third, deposition testimony from Ferndale officials acknowledged that it
was foreseeable that removing students from the school campus could result in
harm to the students. Thus, the trial court erred by granting summary judgment
on the ground that the harm to Anderson was not foreseeable as a matter of law;
there was, at the very least, a question of fact about whether it was reasonably
foreseeable that having Anderson walk along a public roadway off the school
campus could result in him being injured in a collision involving a motor vehicle.
Ill
Ferndale contends, in the alternative, that we should affirm the summary
judgment order on the ground that, even if Ferndale had a duty to Anderson and
breached that duty, there is no genuine issue of material fact regarding whether
Ferndale’s breach of its duty was the proximate cause of the harm to Anderson.
Appellate courts “may affirm the trial court on ‘any theory established in
the pleadings and supported by proof,’ even where the trial court did not rely on
the theory.” Potter v. Wash. State Patrol, 165 Wn.2d 67, 78, 196 P.3d 691
(2008) (quoting Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692,
698, 952 P.2d 590 (1998)). Herein, the parties briefed and argued the issue of
proximate cause before the trial court and have briefed the issue of proximate
9 No. 79655-1 -1/10
cause on appeal. The trial court acknowledged that Ferndale presented
argument regarding the issue of proximate cause in its order, even though it
declined to rule in Ferndale’s favor on that issue. We exercise our discretion to
consider Ferndale’s contention that we should affirm on the alternative ground
that, as a matter of law, Ferndale’s breach was not the proximate cause of
Anderson’s death.
Proximate cause consists of two parts—cause in fact and legal cause.
Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). “Establishing cause
in fact involves a determination of what actually occurred and is generally left to
the jury.” Michaelsv. CH2M Hill, Inc., 171 Wn.2d 587, 610, 257 P.3d 532 (2011)
(quoting Schooley v. Pinch’s Deli Market, Inc., 134 Wn.2d 468, 478, 951 P.2d
749 (1998)). “The focus in the legal causation analysis is whether, as a matter of
policy, the connection between the ultimate result and the act of the defendant is
too remote or insubstantial to impose liability.” Schooley, 134 Wn.2d at 478-49.
Ferndale asserts that there is no genuine dispute of material fact
regarding whether it was a cause in fact of Anderson’s death. We disagree.
“Cause in fact refers to the ‘but for’ consequences of an act—the physical
connection between an act and an injury.” Hartley, 103 Wn.2d at 778 (citing Kinci
v. City of Seattle, 84 Wn.2d 239, 249, 525 P.2d 228 (1974), reiected on other
grounds by, City of Seattle v. Blume, 134 Wn.2d 243, 947 P.2d 223 (1997)). It is
possible for there to be more than one “but for” cause of a harm, and so
causation is frequently considered as a chain of events without which a harm
10 No. 79655-1 -Ill 1
would not have occurred. See, ~ Dep’t of Labor & Indus. v. Shirley, 171 Wn.
App. 870, 884, 288 P.3d 390 (2012). Independent actors may also breach
separate duties which in concurrence produce an injury. Stephens v. Omni Ins.
Co., 138 Wn. App. 151, 182-83, 159 P.3d 10 (2007), affd, 166 Wn.2d 27, 204
P.3d 885 (2009).
The record herein contains sufficient evidence to establish a genuine
dispute of material fact regarding whether Ferndale’s breach was a “but for”
cause of Anderson’s death. Meyers’ and Ferndale’s expert witnesses disagreed
about whether Ferndale’s field trip and excursion policy covered Ritchie’s class
outing, and whether compliance with that policy would have prevented
Anderson’s death. That dispute alone would be sufficient to overcome summary
judgment. ~ C.L. v. Dept of Soc. & Health Servs., 200 Wn. App. 189, 200,
402 P.3d 346 (2017) (“In general, when experts offer competing, apparently
competent evidence, summary judgment is inappropriate.”), review denied, 192
Wn.2d 1023 (2019).
But there is more. The record also reveals disputes regarding the safety
of the walking path Ritchie selected—a path that took students outside of the
school safety speed zone to walk alongside a high speed roadway and required
crossing the road in an area devoid of designated crosswalks—and the alleged
failure to provide sufficient safeguards and to follow pedestrian safety rules
during the walk—such as by having only one adult present to supervise the
class, allowing students to walk at distances up to 200 meters from Ritchie, and
having students walk along sidewalks with their backs to oncoming traffic.
11 No. 79655-1-1/12
Meyers provided expert witness testimony opining that without the improper
walking path and the failure to follow proper pedestrian safety procedures,
Anderson would not have been struck by Klein’s vehicle. It is properly for a jury
to decide whether Ferndale’s breach of its duty of care was a cause in fact of
Anderson’s injuries and subsequent death.
Ferndale next asserts that we should affirm on the ground that its breach
of duty cannot be considered the legal cause of Anderson’s death. This is so,
Ferndale asserts, because (1) the issue of legal causation is analyzed
independently of the field of danger analysis utilized to determine whether a
school district has a duty of care and (2) mixed considerations of logic and policy
support limiting Ferndale’s liability in this case because the connection between
the ultimate injury and Ferndale’s acts is too remote to impose liability. Ferndale
is wrong.
“Unlike factual causation, which is based on a physical connection
between an act and an injury, legal cause is grounded in policy determinations as
to how far the consequences of a defendant’s acts should extend.” Schooley,
134 Wn.2d at 478. “In deciding whether a defendant’s breach of duty is too
remote or insubstantial to trigger liability as a matter of legal cause, we evaluate
‘mixed considerations of logic, common sense, justice, policy, and precedent.”
Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013) (internal quotation
marks omitted) (quoting Hartley, 103 Wn.2d at 779). While duty and legal cause
are not identical issues, Washington courts “have long recognized the
12 No. 79655-1 -1/13
interrelationship between questions of duty and legal cause.” Lowman, 178
Wn.2d at 169 (citing Hartley, 103 Wn.2d at 779-81).
For example, in Lowman, our Supreme Court noted that duty and legal
cause both “concern the policy issue of how far the legal consequences of the
defendant’s negligence should extend.” 178 Wn.2d at 169 (citing Hartley, 103
Wn.2d at 779-80). The court concluded that “[un the context of liability for
negligent roadway design or maintenance, any consideration of the legal cause
question should therefore begin with a review of the duty question” in that
context. Lowman, 178 Wn.2d at 169.
The Lowman court then proceeded to discuss the duty question by relying
on its seminal case concerning duty in the context of a municipality’s
responsibility to protect the users of public roads, Keller v. City of Spokane. 146
Wn.2d 237, 44 P.3d 845 (2002). It noted that “Keller took a broader view of a
municipality’s or utility’s responsibility to protect the users of public roads.
Analyzing the question of duty, the court unequivocally rejected limitations on
liability for roadway design or maintenance premised on the negligence or
recklessness of a driver.” Lowman, 178 Wn.2d at 170-71 (citing Keller, 146
Wn.2d at 249).
After setting forth this analysis, our Supreme Court rejected the argument
raised by the defendant utilities in Lowman that it applied solely to the question of
duty, and not to the question of legal cause. 178 Wn.2d at 171. The court
concluded that “[m]any of the same concerns that guided the duty analysis in
Keller must guide the analysis of legal causation in this case.” Lowman, 178
13 No. 79655-1-1/14
Wn.2d at 171. The court further noted that “policy considerations that support
imposition of a duty will often compel the recognition of legal causation, so long
as cause in fact is established under the relevant facts. Such is the case here.”
Lowman, 178 Wn.2d at 171 (citation omitted) (citing Harbeson v. Parke-Davis,
Inc~ 98 Wn.2d 460, 476, 656 P.2d 483 (1983)). It reasoned that “there is no
rationale to negate the sound policy preference expressed in Keller for holding
municipalities and companies charged with maintaining utilities accountable for
doing so in a reasonable fashion, particularly with regard to safe travel on public
roads.” Lowman, 178 Wn.2d at 172.
Ferndale asserts that we must determine whether its actions are too
remote from Anderson’s death to impose liability without utilizing the general field
of danger foreseeability standard applicable in the context of Ferndale’s duty.
Transferred to the context of a school district’s liability, this is exactly the
argument rejected by our Supreme Court in Lowman. Here, as in Lowman, “any
consideration of the legal cause question should . . . begin with a review of the
duty question.” 178 Wn.2d at 169.
Furthermore, Ferndale does not cite to a single case in the school district
liability context in which a court ruled that principles of legal causation barred
liability.4 Indeed, prior cases discussing legal causation in the school district
context have reached the opposite conclusion. ~, ~ N.L, 186 Wn.2d at 438
~ Instead, Ferndale cites to cases in other contexts that concluded that principles of legal causation barred liability, including Cunningham v. State, 61 Wn. App. 562, 811 P.2d 225 (1991), and Medrano v. Schwendeman, 66 Wn. App. 607, 836 P.2d 833 (1992). However, these specific cases, and their reasoning regarding the application of legal cause principles, were explicitly rejected in Lowman, 178 Wn.2d at 170-71.
14 No. 79655-1-1/15
(“[W]e cannot say as a matter of law that a district’s failure to take any action in
response to being notified that Clark was a registered sex offender was not a
legal cause of N.L.’s injury. Sexual assault by a registered sex offender is
foreseeable, as is the fact that a much younger student can be convinced to
leave campus by an older one.”); McLeod, 42 Wn.2d at 324 (“We have held that
it is for the jury to decide whether the general field of danger should have been
anticipated by the school district. If the jury finds respondent negligent in not
having anticipated and guarded against this danger, then it is not for the court to
say that such negligence could not be a proximate cause of a harm falling within
that very field of danger.”).
Ferndale’s urging that we uncouple legal causation analysis from duty
analysis runs counter to the Supreme Court’s teachings in Lowman. Based on
established law, Ferndale fails to establish that its defalcations were not the legal
cause of Anderson’s injuries and subsequent death.
Reversed.
— - 4
/ WE CONCUR:
I