Meyers v. Ferndale Sch. Dist.

481 P.3d 1084

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MARCH 4, 2021 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON MARCH 4, 2021 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

BONNIE I. MEYERS, as personal ) representative of the estate of GABRIEL ) No. 98280-5 LEWIS ANDERSON, a deceased minor, ) age 15, and on behalf of the beneficiaries ) of the estate; and BRANDI K. SESTROM ) En Banc and JOSHUA ANDERSON, individually, ) ) Respondents, ) ) v. ) ) FERNDALE SCHOOL DISTRICT, a ) political subdivision of the State of ) Washington, ) ) Petitioner, ) ) and ) ) WILLIAM KLEIN and JANE DOE KLEIN, ) and the marital community comprised ) thereof, ) ) Defendants. ) ) Filed: March 4, 2021

JOHNSON, J.—This case involves a wrongful death claim brought on

behalf of a student against the school district. Gabriel Anderson, a student of the Meyers v. Ferndale Sch. Dist., No. 98280-5

Ferndale School District (Ferndale), was killed by a vehicle while on an off

campus walk with his physical education (PE) class. Anderson’s estate alleged

negligence by Ferndale. The trial court dismissed the claim, granting Ferndale

summary judgment based on a lack of duty. The Court of Appeals reversed,

determining that there were sufficient factual issues on duty and proximate

causation. Ferndale challenges the Court of Appeals’ analysis of proximate cause.

We are asked to decide whether Ferndale is entitled to summary judgment

dismissal based on proximate causation. While the Court of Appeals erred in

analyzing legal causation, it properly concluded that material issues of fact exist

concerning proximate causation. We affirm the Court of Appeals’ decision to

reverse summary judgment dismissal of the negligence claim against Ferndale.

Meyers v. Ferndale Sch. Dist., 12 Wn. App. 2d 254, 457 P.3d 483, review granted,

195 Wn.2d 1023 (2020).

FACTS

Anderson was a student at Windward High School, which is part of the

Ferndale School District. On June 10, 2015, Evan Ritchie, the PE teacher, decided

to take his class on an off campus walk along West Smith Road. Before the PE

walk, Ritchie explained the basic logistics to his students, including the route and

which side of the road to walk on. The class was composed of approximately 25

students. Anderson was part of this class.

2 Meyers v. Ferndale Sch. Dist., No. 98280-5

The students walked along the raised sidewalk on the north side of West

Smith Road. The sidewalk was separated from traffic by a fog line and eight-foot

shoulders. The group reached the end of the sidewalk, turned around, and

proceeded back to school. They crossed the street to the south side of West Smith

Road. The group did not cross at a marked crosswalk. On this side of the road, the

group had their backs to oncoming traffic. Ritchie was positioned at the back of the

group in a “sweep” position. 1 Clerk’s Papers (CP) at 16. Students were spread

apart, as far as 200 meters away from Ritchie. Ritchie was walking beside

Anderson as they approached the intersection of Graveline Road.

A vehicle traveling eastbound on West Smith Road left the roadway and

crossed onto the sidewalk. The driver, William Klein, had evidently fallen asleep at

the wheel, lost control of his vehicle, and within approximately one second of

leaving the roadway, struck Anderson and three other students. Tragically,

Anderson and one other student died on impact. Two other students were severely

injured.

Windward High School is a small choice school located along West Smith

Road. West Smith Road is a two-lane roadway with varying speed limits. The

section where the accident occurred had a 40 m.p.h. speed limit. The campus was a

former elementary school with limited athletic facilities, which included a small

track and field. Due to the facility limitations, Ritchie sometimes took his PE

3 Meyers v. Ferndale Sch. Dist., No. 98280-5

classes on off campus walks as part of the regular curriculum. He used the same

route taken on June 10 approximately 30 times before. The walks generally took

30-40 minutes and were not usually planned in advance. The principal, Tim

Kiegley, confirmed that Ritchie had asked him for permission to take students on

these walks before, and they had discussed general safety and the appropriate

route. The parties dispute whether Kiegley had notice of the walk on that particular

day.

Ferndale has two policies regarding off campus field trips and excursions:

“Policy No. 2320” and “Policy No. 2320 P-1.” Policy No. 2320, titled “Field Trips,

Excursions and Outdoor Education,” recognizes that “[t]he superintendent will

develop procedures for the operation of a field trip or an outdoor education activity

which will ensure that the safety of the student is protected and that parent

permission is obtained before the student leaves the school.” 1 CP at 317. Ferndale

policy does not provide a definition for “field trip.” The corresponding Policy No.

2320 P-1 provides specific procedures for field trips. Teachers must request

permission from the principal at least a month prior to the event, send parents a

notice and permission form, arrange transportation, make plans to keep the group

together, and provide a list of participating students and chaperones. Once the

teacher completes these tasks, the principal must review and provide approval at

least three weeks before the event and ensure that parents are notified and

4 Meyers v. Ferndale Sch. Dist., No. 98280-5

permission slips are submitted. Ritchie and Kiegley did not consider these off

campus walks as field trips. As a result, they did not follow these procedures, nor

did they notify or obtain permission from parents or guardians.

The wrongful death claim was filed by the personal representative of

Anderson’s estate, Bonnie Meyers, alleging negligence by Klein and Ferndale. 1

Ferndale moved for summary judgment, arguing that Anderson’s death was not

foreseeable and that Meyers could not establish proximate cause. The trial court

considered declarations and reports submitted by both parties, including

declarations and deposition testimony from Ritchie, Kiegley, Meyers, accident

reconstruction experts, former Ferndale teachers, and former school district

officials. The trial court granted Ferndale’s motion and dismissed the claims. The

trial court concluded that under these facts, the accident was simply unforeseeable

and, as such, did not fall within Ferndale’s duty to its students. The trial court did

not reach proximate causation.

Meyers appealed. The Court of Appeals reversed and remanded for trial,

holding that there were questions of fact for the jury on both duty and proximate

cause. On duty, the court determined that there was a question of fact as to whether

Anderson’s death was reasonably foreseeable. Additionally, the Court of Appeals

1 Any civil claim against Klein is not before us.

5 Meyers v. Ferndale Sch. Dist., No. 98280-5

analyzed the issue of proximate cause. The Court of Appeals found genuine issues

of material fact and rejected the argument that Ferndale was not the legal cause of

Anderson’s injuries and subsequent death. Ferndale petitioned for discretionary

review solely on the proximate cause issue. 2

ANALYSIS

We review an order granting summary judgment de novo. Lowman v.

Wilbur, 178 Wn.2d 165, 168, 309 P.3d 387 (2013). Summary judgment is

appropriate where there is no genuine issue as to any material fact, so the moving

party is entitled to judgment as a matter of law. We view the facts and reasonable

inferences in the light most favorable to the nonmoving party. Michak v.

Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003).

To prevail in this negligence claim, Meyers “‘must show (1) the existence of

a duty to the plaintiff, (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)). To prevail on summary judgment, Ferndale must establish

that viewing the facts and inferences in the light most favorable to Meyers, Meyers

fails to demonstrate a genuine issue of material fact as to Ferndale’s negligence.

2 Washington State Association for Justice Foundation filed an amicus brief in support of Meyers.

6 Meyers v. Ferndale Sch. Dist., No. 98280-5

In the briefing filed in this court, the parties do not dispute that a genuine

issue of material fact exists as to duty and, instead, focus the arguments primarily

on proximate causation.3 Although duty is a separate inquiry, some brief

background on duty remains useful here because the duty analysis informs the

proximate cause analysis.

The analysis in Hendrickson v. Moses Lake School District, 192 Wn.2d 269,

276-77, 428 P.3d 1197 (2018), is helpful in resolving the issue here. In

Hendrickson, we analyzed that school districts owe a unique duty of care based on

the custodial and involuntary nature of their relationship with students. Teachers

are effectively substituted for parents when students are in the custody of the

school because students are involuntarily subject to school rules, discipline,

direction, and activities. We compared the duty of care for parties with special

relationships and those without special relationships as set out in sections 314 and

314A of the Restatement (Second) of Torts (Am. Law Inst. 1965). Section 314

describes that most parties operate in a limited pool of risk and are required to take

affirmative action to protect only from harm that is within their direct control.

Whereas, based on the special relationship duty described in section 314A, school

districts have a duty to protect students from foreseeable harm, even harm caused

3 “Ferndale does not challenge the Court of Appeal[s’] analysis of the duty owed.” Pet. for Review at 9.

7 Meyers v. Ferndale Sch. Dist., No. 98280-5

by third parties. In doing so, schools enter a larger pool of risk and must anticipate

and take affirmative action to protect students while in school custody.

Generally, school districts have a duty “to anticipate dangers which may

reasonably be anticipated, and to then take precautions to protect” students from

such dangers. McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 320, 255

P.2d 360 (1953). In the instance where the harm stems from an intervening act of a

third person, a school may still be considered negligent where the intervening act is

reasonably foreseeable. Regarding foreseeability,

[w]hether foreseeability is being considered from the standpoint of negligence or proximate cause, the 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.

In this case, the parties dispute certain facts, such as whether the formal field

trip policy applied and was followed, whether parental permission was required,

and whether proper safeguards were taken, including using a reflective vest and

having students cross at designated crosswalks, walk facing traffic, or walk closer

together. There is also a factual dispute as to whether a vehicular accident that

occurred while students were on an off campus walk alongside the road fell within

a general field of danger that should have been anticipated.

8 Meyers v. Ferndale Sch. Dist., No. 98280-5

Meyers presented reports and declarations that car accidents occur in any

number of ways, including where drivers fall asleep at the wheel, text, speed, or

are intoxicated. Regardless of the specific cause of the accident, generally,

pedestrian-vehicular accidents are frequent occurrences. Ritchie recognized in his

deposition that an inherent risk exists that vehicles could stray from the roadway

and onto sidewalks. Other experts pointed out in their declarations and reports that

the harm of a vehicle hitting a pedestrian on a sidewalk was a reasonably

foreseeable danger of taking students off campus near a roadway. As the Court of

Appeals correctly concluded, viewing the facts in the light most favorable to

Meyers, whether the harm in this case was within the applicable duty is a question

for the jury.

Even assuming that duty exists, the parties dispute the Court of Appeals’

analysis of proximate causation. Proximate cause is generally a fact question for

the jury, but if reasonable minds could not differ, these factual questions may be

determined as a matter of law. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979

P.2d 400 (1999). Proximate cause is composed of both cause in fact and legal

cause. While the cause in fact inquiry focuses on a “but for” connection, legal

cause is grounded in policy determinations as to how far the consequences of a

defendant’s acts should extend. Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d

468, 478-79, 951 P.2d 749 (1998).

9 Meyers v. Ferndale Sch. Dist., No. 98280-5

Ferndale argues that as a matter of law, Meyers cannot establish that any

alleged breach was the 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 v. State, 103 Wn.2d 768, 778, 698 P.2d 77

(1985). Cause in fact is generally left for the jury, and it determines what actually

occurred.

We discussed the issue of cause in fact in N.L. and determined whether the

plaintiff produced sufficient evidence of cause in fact to overcome summary

judgment. In that case, N.L. sued the school district for failing to notify teachers,

coaches, and staff that an older student, who mentored younger students on the

track team, was a known sex offender. We determined that a cause in fact question

existed for the jury, reasoning that had the track coach been informed by school

officials that the student was a registered sex offender, the coach could have taken

reasonable steps to keep that student away from younger students. That is, where

the alleged evidence supported that preventative steps could have been taken if the

district fulfilled its duty, the matter should be left for the jury. N.L., 186 Wn.2d at

437-39.

Here, the Court of Appeals below similarly determined that a question for

the jury exists as to whether the alleged breach was the cause in fact of Anderson’s

death. In sum, Ferndale and Meyers presented conflicting views in the

10 Meyers v. Ferndale Sch. Dist., No. 98280-5

declarations, deposition testimony, and expert reports as to whether any reasonable

actions by Ferndale could have prevented the accident. Ferndale presented expert

opinions that concluded that even if additional precautions were taken, the accident

could not have been avoided and there was nothing unsafe about the walk. Their

expert also concluded that this activity did not require compliance with Policy No.

2320 and that the school took adequate safeguards. Meyers presented contrary

declaration and deposition testimony supporting that if Ferndale had abided by

Policy No. 2320 and employed additional safeguards, Anderson’s death could have

been prevented because he would not have been on the off campus walk or, at the

very least, would have been at a safer location, facing traffic while walking on the

sidewalk. Based on the disputed assertions and viewing the facts in the light most

favorable to the nonmoving party, Meyers presented sufficient evidence to survive

summary judgment by establishing a factual question as to whether Ferndale’s act

of taking the students off campus led to the accident.

Turning to the issue of legal cause, Ferndale asserts that the Court of

Appeals improperly conflated the duty and legal cause inquiries and failed to

conduct an independent analysis of legal cause. We agree with Ferndale that in its

analysis, the Court of Appeals erroneously conflated the duty inquiry with the legal

cause inquiry. Its analysis seemingly concluded that the establishment of duty also

satisfies legal causation. This is incorrect. While the issues of duty and legal cause

11 Meyers v. Ferndale Sch. Dist., No. 98280-5

often involve similar considerations, they are separate inquiries. Even where “all

the other elements of tort liability are present, . . . [t]he court still must adduce

from the record whether, as a policy of law, legal liability should attach.” King v.

City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974). In Schooley, the Court of

Appeals similarly erred by concluding that legal causation was automatically

satisfied by the existence of duty. We clarified that

the issues regarding whether duty and legal causation exist are intertwined. This is so because some of the policy considerations analyzed in answering the question whether a duty is owed to the plaintiff are also analyzed when determining whether the breach of the duty was the legal cause of the injury in question. However, a court should not conclude that the existence of a duty automatically satisfies the requirement of legal causation. This would nullify the legal causation element and along with it decades of tort law. Legal causation is, among other things, a concept that permits a court for sound policy reasons to limit liability where duty and foreseeability concepts alone indicate liability can arise. .... . . . [I]t is apparent that in some cases the policy considerations involved in determining whether a duty is owed to the plaintiff will be revisited in deciding whether legal causation is established. However, this does not mean that once a court finds a duty exists it need not analyze legal causation or that the result will automatically be the same. Thus, legal causation should not be assumed to exist every time a duty of care has been established.

Schooley, 134 Wn.2d at 479-80 (internal citations omitted).

This distinction was reflected further in the legal cause analysis. The issue in

Schooley was whether an alcohol vendor, who sold alcohol to minors, should be

liable for injuries to a minor who consumed the alcohol but did not directly

12 Meyers v. Ferndale Sch. Dist., No. 98280-5

purchase it. After determining that factual questions existed as to duty, we began

our analysis of legal cause by revisiting the overarching policy reasons for

imposing a duty on alcohol vendors, which were rooted in protecting the health

and safety of minors. We next discussed the broader policy concern of whether

imposing liability would result in unlimited liability for vendors. We determined

that liability was not so broad and could be limited by the doctrines of contributory

negligence, foreseeability, and superseding causes. Ultimately, we held that the

injury to the minor plaintiff was not too remote as to preclude vendor liability as a

matter of law where the underlying principle was to protect minor purchasers and

consumers. We left that determination for the jury. Schooley, 134 Wn.2d at 483.

Similarly, in Lowman, we again considered the interrelationship between

duty and legal cause in reviewing a summary judgment determination where the

parties had stipulated to all the other elements of negligence except legal cause. In

that case, we began the discussion of legal cause with a review of the duty

question, which we had established in an earlier case, Keller v. City of Spokane,

146 Wn.2d 237, 44 P.3d 845 (2002). Keller held that municipalities had a duty to

protect against negligent and reckless drivers but not against extremely negligent

or criminally reckless drivers, so municipality liability was not unlimited. Like in

Schooley, we reasoned that there was “no rationale to negate the sound policy

13 Meyers v. Ferndale Sch. Dist., No. 98280-5

preference expressed in Keller for holding municipalities [liable]” for harm

resulting from negligent drivers. Lowman, 178 Wn.2d at 172.

While the Court of Appeals here erred by concluding that the existence of a

factual dispute as to duty also resolved the issue of legal causation, the proper

analysis leads to the same result. Legal cause is determined by utilizing “‘“mixed

considerations of logic, common sense, justice, policy, and precedent.”’” Schooley,

134 Wn.2d at 479 (quoting King, 84 Wn.2d at 250 (quoting 1 THOMAS ATKINS

STREET, FOUNDATIONS OF LEGAL LIABILITY 110 (1906))). The question becomes

whether as a matter of policy the connection between the ultimate result and the act

or omission of the defendant is too remote or insubstantial to impose liability. The

underlying policy considerations relevant to duty, including foreseeability, are the

starting points of the legal cause analysis. Beyond that, the legal cause inquiry

includes broader policy considerations.

In this case, the legal cause analysis includes the underlying policy

considerations for imposing liability. Given the special relationship existing

between schools and students, school districts have a duty to protect their students

from reasonably anticipated dangers.

We recently discussed these principles and the relation between duty and

legal causation in N.L. In that case, we concluded that there was a question of fact

as to whether the intervening acts, the students leaving campus and the criminal act

14 Meyers v. Ferndale Sch. Dist., No. 98280-5

of rape, were reasonably foreseeable and held that the issue of proximate cause

remained for the jury. When discussing and engaging in a separate analysis of legal

causation, we broadened our consideration beyond foreseeability and discussed the

underlying policy, which included, in that case, a specific responsibility to provide

information to protect the public and counteract the potential danger posed by sex

offenders. In light of that underlying policy and the custodial nature of the

relationship between school districts and their students, we could not conclude as a

matter of law that the district’s failure to take any preventative action after being

notified of a student’s prior sex offense was not a legal cause of the plaintiff’s

injury. N.L., 186 Wn.2d at 438-39. We left the issue of proximate cause for the jury

to resolve.4

Our holding in McLeod similarly recognized that in the context of summary

judgment, where factual questions existed regarding foreseeability, proximate

causation was also a matter for the jury. We determined that the custodial

relationship between schools and students extends potential liability to the school

where the injury involves a foreseeable intervening act of a third person. There, the

plaintiff sued the school district and alleged that the school was negligent for

4 The verdict issued in Hendrickson further exemplified that regardless of the other negligence elements, proximate cause may be resolved by the jury. Hendrickson, 192 Wn.2d at 274. That case concerned a student who was injured while using a saw in a woodshop class. While the scope of duty and causation overlapped, the jury ultimately found no school district liability due to a lack of proximate cause, despite finding the other elements of negligence satisfied. We upheld that jury verdict.

15 Meyers v. Ferndale Sch. Dist., No. 98280-5

failing to lock and supervise a room in the school gymnasium where she was raped

by other students. We determined that a factual question existed as to whether the

intervening, criminal acts of the other students were reasonably foreseeable by the

school. We noted that if the harm is one of the particular risks that made the

defendant’s conduct negligent, it is obviously a consequence for which the

defendant must be held legally responsible and it is not for the court to say that

such negligence could not be a proximate cause. In that case, we concluded that the

alleged negligence of failing to anticipate and guard against the danger of a dark,

unsupervised room was not too remote as matter of law to establish legal cause.

McLeod, 42 Wn.2d at 324-25.

Ferndale relies on Channel v. Mills, 77 Wn. App. 268, 277, 890 P.2d 535

(1995), for the proposition that a negligent act cannot be the proximate cause of a

harm where that act merely brings the plaintiff to the wrong place at the wrong

time. That case involved a vehicle collision at an intersection, where the defendant

was speeding and the plaintiff ran a red light. The Court of Appeals in Channel

considered whether specific evidence about the defendant’s speed was relevant to

proximate cause; the evidence supported the argument that if the defendant were

not speeding, the cars would have cleared each other in the intersection. The Court

of Appeals recognized however that excessive speed may establish cause in fact,

even where the speed merely placed the drivers at the location of the accident. The

16 Meyers v. Ferndale Sch. Dist., No. 98280-5

court also held that excessive speed may satisfy legal cause where the evidence

also establishes that but for the speeding, the defendant would have been able to

avoid the accident by other means, such as swerving or braking. The court upheld

the exclusion of the speeding evidence because it did not establish that the accident

could have been avoided, which would have supported legal cause. The Channel

holding is distinguishable because the evidence was offered to explain the fortuity

of two vehicles meeting at an intersection and was based on the unique

characteristics of speeding. Ferndale’s reliance on Channel is misplaced where,

here, Meyer asserts that Ferndale’s specific act of taking students on an off campus

walk without complying with internal policies, without parental permission, and

allegedly without adequate safety precautions legally caused the death of a student.

In sum, our cases establish a policy based on the special relationship where

school districts may be liable for harms suffered by students even where the harm

occurs off campus and is caused by the act of a third party. This flows from the

custodial relationship and responsibility between schools and students. Since

students are involuntarily subject to the school’s control, schools must take

affirmative steps to protect students even against reasonably foreseeable acts of

third parties.

Ferndale essentially argues that liability in this instance would subject

school districts to nearly unlimited liability. We rejected a similar argument in

17 Meyers v. Ferndale Sch. Dist., No. 98280-5

Schooley, where the defendant’s policy argument in support of no legal cause was

the fear of unlimited liability. 134 Wn.2d at 480-81. In Schooley, we held that the

duty of an alcohol vendor was not so onerous and that fulfillment of that duty was

within the vendor’s own control. We emphasized that the vendor is absolved from

liability where it simply satisfies its duty of care. Further, in that case, we reasoned

that other legal concepts limit liability as well, such as foreseeability, contributory

negligence, and superseding causes.

Similarly, we reject Ferndale’s argument that we should resolve proximate

cause based on the fear of unlimited liability. Ferndale posits that commonplace

school practices that subject students to any risk would cease because of potential

liability concerns, activities such as field trips, transportation by school bus,

woodshop classes, and chemistry experiments. But Ferndale fails to recognize that

school districts would not be subject to civil liability if the school satisfied its duty

of care by, for example, facilitating those activities with proper supervision, safety

precautions, and instruction. Those activities are distinct from the one before us

because a dispute exists over Ferndale’s duty of care. Viewing the facts in the light

most favorable to Meyers, this case involved an off campus class walk that did not

comply with internal policies and safety precautions. We conclude that these

alleged acts of negligence are not too remote or insubstantial to be the legal cause

18 Meyers v. Ferndale Sch. Dist., No. 98280-5

of Anderson’s death. In this case, we cannot preclude liability as a matter of law

based on legal cause.

In the alternative, Ferndale urges us to adopt an alternative “unreasonable

risk” test seemingly employed in other jurisdictions, where to be liable for a harm

the school district’s act or omission must heighten or increase the risk beyond the

ordinary risk inherent in the activity. Suppl. Br. of Pet’r at 12-17; see Rogers v.

Retrum, 170 Ariz. 399, 403-04, 825 P.2d 20 (Ct. App. 1991); Kazanjian v. Sch.

Bd., 967 So. 2d 259, 265 (Fla. Dist. Ct. App. 2007); Thompson v. Ange, 83 A.D.2d

193, 443 N.Y.S.2d 918 (1981). Ferndale characterizes the “unreasonable risk” test

as a proximate cause consideration and primarily relies on Rogers, a case decided

by the Arizona Court of Appeals. But in that case, the court assessed the

reasonableness of the risk in resolving the breach element. The issue was whether

the district breached its duty to protect students by maintaining an open campus

policy that allowed students to leave campus freely during school hours. The issue

of breach is not before us, so this consideration is inapposite.

We affirm the Court of Appeals and remand to the trial court for further

proceedings.

19 Meyers v. Ferndale Sch. Dist., No. 98280-5

Johnson, Joson,J.J.

WE CONCUR:

20 Meyers v. Ferndale Sch. Dist., No. 98280-5

No. 98280-5

GORDON McCLOUD, J. (concurring)—I agree with the majority that there

are genuine issues of material fact regarding whether Ferndale School District’s

alleged negligence was the cause in fact of Gabriel Anderson’s tragic death. And I

agree with the majority that the Court of Appeals erred in its analysis of legal

cause, which is not coextensive with duty under our precedents and which requires

its own analysis.

But I disagree in part with the majority’s application of its legal cause

analysis. Broadly speaking, Meyers alleged that two separate acts breached

Ferndale’s duty of care: (1) Ferndale’s failure to obtain parental permission for the

walk and (2) the manner in which the teacher, Evan Ritchie, conducted the walk.

Clerk’s Papers (CP) at 569-70; Answer to Pet. for Review at 3-6. I agree with the

majority’s application of its legal cause analysis with regard to the issue of failure

to obtain parental permission; under our precedent, we cannot preclude liability as

a matter of law in this case because Ferndale’s failure to obtain parental permission

for the off-campus walk is not too remote from or insubstantial with regard to the

1 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

tragedy that occurred on the walk. Majority at 18-19. Because I agree with that

conclusion, I concur.

I write separately, however, on the subject of the second set of acts on which

Meyers bases her claim of negligence—the manner in which Ritchie conducted the

walk. I would hold that as a matter of law, liability should not attach where, at the

time the accident occurred, Anderson was engaging in a basic activity of daily life:

walking safely on a public sidewalk, precisely where he was supposed to walk, in

broad daylight.

I. THE MAJORITY CORRECTLY HOLDS THAT RITCHIE’S FAILURE TO COMPLY WITH AN ALLEGEDLY APPLICABLE PARENTAL NOTIFICATION POLICY MIGHT WELL BE A LEGAL CAUSE OF ANDERSON’S DEATH

“Proximate cause has two elements: cause in fact and legal cause.” N.L. v.

Bethel Sch. Dist., 186 Wn.2d 422, 436-37, 378 P.3d 162 (2016) (citing Hartley v.

State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985) (citing Harbeson v. Parke-Davis,

Inc., 98 Wn.2d 460, 475, 656 P.2d 483 (1983))). Cause in fact, which “‘refers to

the “but for” consequences of an act—the physical connection between an act and

an injury,’” is normally a question of fact for the jury. Id. at 437 (quoting Hartley,

103 Wn.2d at 778 (citing King v. City of Seattle, 84 Wn.2d 239, 249, 525 P.2d 228

(1974))). In contrast, legal cause “‘[is] a question of law’” for the court. Tae Kim v.

Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 204, 15 P.3d 1283 (2001) (alteration

2 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

in original) (quoting McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 359, 961

P.2d 952 (1998)).

That is because legal cause “is grounded in policy determinations as to how

far the consequences of a defendant’s acts should extend.” Schooley v. Pinch’s

Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). Legal cause “concerns

whether liability should attach as a matter of law” even where other elements of

negligence are met. Christen v. Lee, 113 Wn.2d 479, 508, 780 P.2d 1307 (1989)

(citing Baughn v. Honda Motor Co., 107 Wn.2d 127, 146, 727 P.2d 655 (1986);

Hartley, 103 Wn.2d at 779); Schooley, 134 Wn.2d at 479. To that end, we

determine legal cause upon “‘“mixed considerations of logic, common sense,

justice, policy, and precedent.”’” Schooley, 134 Wn.2d at 479 (quoting King, 84

Wn.2d at 250 (quoting 1 THOMAS ATKINS STREET, FOUNDATIONS OF LEGAL

LIABILITY 110 (1906))). Thus, “the court often exercises its gatekeeper function by

dismissing an action without trial for lack of legal cause if the defendant’s actions

are too remote a cause of plaintiff’s injuries.” McCoy, 136 Wn.2d at 360.

I therefore agree with the majority’s analysis of legal cause. Majority at 14

(“The question becomes whether as a matter of policy the connection between the

ultimate result and the act or omission of the defendant is too remote or

insubstantial to impose liability.”).

3 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

And I agree with the majority’s application of that legal cause analysis to

Ritchie’s failure to obtain parental permission slips. The “‘mixed considerations of

logic, common sense, justice, policy, and precedent’” that we are required to

evaluate compel its conclusion. McCoy, 136 Wn.2d at 359-60 (internal quotation

marks omitted) (quoting King, 84 Wn.2d at 250). As the majority correctly

explains, “[t]he underlying policy considerations relevant to duty, including

foreseeability, are the starting points of the legal cause analysis.” Majority at 14.

Starting from this point, Ferndale undisputedly had a duty to protect its students

from reasonably foreseeable harm. Id. at 7-8. The underlying policy consideration

for imposing that duty is the special custodial relationship between a school and its

students, which recognizes the inherently involuntary nature of school attendance

and the concomitant loss of parental control during school hours. Id. at 7 (citing

Hendrickson v. Moses Lake Sch. Dist., 192 Wn.2d 269, 276-77, 428 P.3d 1197

(2018)). A parental consent requirement for off-campus trips mitigates some of the

intrusion into parental supervision and control inherent in the mandatory nature of

school attendance for minors.

Taking the facts in the light most favorable to Meyers, there is a genuine

issue of material fact as to whether Ferndale’s field trip policy did apply to this off-

campus walk. 1 CP at 366; 2 CP at 458-59, 480-81. And there is a genuine issue of

4 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

material fact as to whether the failure to comply with the policy was a cause in fact

of Anderson’s death: Anderson’s grandmother, who was his guardian, stated that

she would not have signed a permission slip for this walk had she been presented

with one. 1 CP at 433. Applying the Schooley factors, I agree that a teacher’s

failure to comply with a field trip permission slip requirement that was a cause in

fact of a student’s death establishes legal cause. Any other conclusion would

undermine the important safety considerations that motivate such a requirement—

permitting parents and guardians to make decisions about what off-campus risks

they will allow their child to encounter while the child is in the custody of the

school. See id. at 317 (purpose of Ferndale’s “Policy No. 2320,” “Field Trips,

Excursions and Outdoor Education,” was to ensure “that the safety of the student is

protected and that parent permission is obtained before the student leaves the

school”).

That is enough to preclude summary judgment on the issue of legal cause in

this case. But if we consider only the second act that Meyers alleges was

negligent—the manner in which Ritchie led the students on the off-campus walk—

application of the five legal cause considerations leads to the opposite result:

liability should not attach to the act of taking students on a walk on the sidewalk.

5 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

II. THE MAJORITY ERRS IN HOLDING THAT WALKING NORMALLY ON AN OPEN SIDEWALK IN BROAD DAYLIGHT MIGHT CONSTITUTE A LEGAL CAUSE OF ANDERSON’S DEATH

This tragic accident occurred while Anderson was engaging in a basic

activity of everyday life, one that he engaged in during nonschool hours as well:

walking on a wide, raised public sidewalk in broad daylight. 2 CP at 543-44.

Logic, common sense, policy, justice, and precedent compel the conclusion that

Ritchie’s act of walking with Anderson on a sidewalk in an utterly typical and

completely lawful manner is not an act to which we should extend liability as a

matter of law.

Meyers alleges that Ritchie’s act of taking the high schoolers on the walk

breached Ferndale’s duty of care because Ritchie and the school failed to take

adequate safety precautions. Answer to Pet. for Review at 5; 2 CP at 569-70.

Among the precautions that Meyers alleges could have prevented the accident were

walking on a different road with a lower speed limit; walking facing traffic, instead

of with backs to traffic; requiring Ritchie to wear a high-visibility vest; not

crossing the road at an undesignated crosswalk; having additional adults present to

supervise; and not allowing students to walk up to 200 meters ahead of Ritchie. See

Meyers v. Ferndale Sch. Dist., 12 Wn. App. 2d 254, 265, 457 P.3d 483, review

granted, 195 Wn.2d 1023 (2020); 2 CP at 569-70.

6 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

But in order to constitute legal cause, the defendant’s actions must not be

“too remote a cause of plaintiff’s injuries.” McCoy, 136 Wn.2d at 360; Schooley,

134 Wn.2d at 478-49. Here, even assuming that Ferndale was negligent by failing

to take these precautions, Ferndale’s failure to take them is too remote from

Anderson’s death to impose liability. The fact that the class crossed the road at an

undesignated crosswalk has no direct link to the accident, which happened not in

the middle of the road but while Anderson was walking on a pedestrian sidewalk. 1

CP at 19. The day was bright and sunny, and the driver who struck Anderson did

so because he fell asleep at the wheel—no amount of high-visibility vests would

have prevented the accident. Id. at 186-87. At the time that the vehicle struck

Anderson, he was walking alongside teacher Ritchie at the back of the group of

students—making it clear that having an additional chaperone would not have

made a difference. Id. at 314. Further, the fact that Anderson was walking right

next to Ritchie makes it immaterial that other students were walking up to 200

meters ahead. Id. at 16, 314; 2 CP at 570. And the driver had been driving at

around 32-34 miles per hour (within the speed limit) when he fell asleep and only

one second elapsed between the driver leaving the roadway and hitting Anderson.

1 CP at 186-87. The rapidity of this impact supports the conclusion that the

7 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

direction that Anderson was facing while walking, tragically, would not reasonably

have made a difference.

Finally, there is no reasonably direct link between the route that Ritchie took

and the accident. The sidewalk on which the class walked was a normal, pedestrian

sidewalk that was five and a half feet wide with an eight-foot-wide shoulder

between the fog line and the curb. Id. at 157. The road had a 40-mile-per-hour

speed limit. Id. at 16. Uncontroverted evidence showed that pedestrians regularly

used the sidewalk. Id. at 311. Both parties agreed that there were no particular

dangers associated with the road and that there had been only one vehicle-

pedestrian accident in that area of the road in the previous 10 years. Id. at 158; 2

CP at 570. In fact, uncontroverted evidence showed that Anderson had permission

from his guardians to cross the same roadway at lunchtime to buy lunch at a nearby

café, and that he regularly did so. 2 CP at 543-54. And it would be absurd to accept

the premise that walking on a sidewalk with one’s back facing traffic—something

that common sense and experience show happen every day without incident—is

itself negligent. In sum, there is no reasonably direct link between the accident and

the manner in which Ritchie was leading the walk at the time of the accident.

The majority dismisses the argument that its holding would lead to unlimited

liability, majority at 18, but I believe it warrants more consideration. The allegedly

8 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

negligent activity was undisputedly a basic activity of daily life: allowing students

to walk on a sidewalk, in compliance with applicable traffic laws. If legal cause is

satisfied here, then legal cause could be satisfied for accidents occurring during

many basic recreational and educational activities that students enjoy, from jump

rope to dance.

To be sure, we have held that legal cause exists if the alleged negligence

involved an activity or omission that was inherently dangerous—such as designing

vehicles, selling alcohol, or allowing unsupervised students to enter a dark,

secluded room during lunch hour. McCoy, 136 Wn.2d at 360 (declining to preclude

legal cause as a matter of law where plaintiff was injured by hit-and-run motorist

while assisting victim of car accident that allegedly occurred due to car

manufacturer’s negligent design and manufacture of vehicle); Schooley, 134

Wn.2d at 483 (legal cause met as a matter of law where alleged negligence was

store’s unlawful sale of alcohol to minor, who then furnished it to another minor

who was injured in alcohol-related accident); McLeod v. Grant County Sch. Dist.

No. 128, 42 Wn.2d 316, 325, 255 P.2d 360 (1953) (declining to preclude proximate

cause as a matter of law where alleged negligence was allowing unsupervised

students to enter dark, secluded room within school auditorium, where plaintiff

was raped by other students who took her to that room).

9 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

But we have not extended legal cause to the quotidian activity of taking high

school students for a walk on a sidewalk. I would not do so here. In fact, I find

this case very similar to Claar v. Auburn School District No. 408, 126 Wn. App.

897, 110 P.3d 767 (2005), and I would apply the legal cause analysis just as the

appellate court did there. In Claar, a school bus driver dropped off a student 20 to

100 feet past her normal bus stop in front of her house. Id. at 899. After the bus had

pulled away and was waiting at an intersection ahead, the student crossed the road

to check her mailbox and was struck by an oncoming vehicle. Id. The student sued,

arguing in part that the accident was proximately caused by the bus driver dropping

her off several feet away from her typical bus stop and then failing to properly

monitor her after she exited the bus. Id. at 900. The Court of Appeals disagreed. It

held that even assuming plaintiff proved but-for causation, she still could not prove

legal causation because the theoretical link between the driver’s actions and the

resulting harm was just too attenuated. Id. at 903. The court explained that “[t]he

only proof Claar offers as to the danger of the drop off point is evidence of the

accident itself.” Id.

The instant case is similar in relevant respects. Just as in Claar, there is no

evidence showing that the roadway or sidewalk where Anderson was struck had

any particular danger or risk associated with it that was different than any other

10 Meyers v. Ferndale Sch. Dist., No. 98280-5 (Gordon McCloud, J., concurring)

similar location. And just as in Claar, none of the precautions proposed by Meyers

in this case would have prevented the accident; even if Ritchie were negligent in

failing to take those proposed precautions—like crossing the street at a different

location—any link between the hypothetical precaution and the actual tragedy that

occurred is too attenuated to support liability here.

III. CONCLUSION

I agree that Ferndale’s alleged failure to obtain required parental permission

for the walk suffices to show legal cause. I disagree that Ritchie’s decision to take

that walk on the sidewalk, at a normal pace, in broad daylight, suffices to show

legal cause. I therefore respectfully concur.

_________________________ Gordon McCloud, J.

___________________________

____________________________