N.L. v. Bethel Sch. Dist.

• Court: Washington Supreme Court
• Decided: September 1, 2016
• Docket: 91775-2
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there.              

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

N.L., ) ) No. 91775-2 Respondent, ) ) v. ) En Bane ) BETHEL SCHOOL DISTRICT, ) ,•"• ~--.... -- ' ..., ) , - ~::~ Filed - - - - - Petitioner. )

GONZALEZ, J.-N.L. met Nicholas Clark at school track practice. She

was 14, and he was 18. Both were students in the Bethel School District.

Neither N.L. nor any responsible adult on the field knew that Clark was a

registered sex offender who had previously sexually assaulted a younger girl

who had been about N.L. 'sage at the time. The Pierce County Sheriff's

Department had informed Clark's school principal of his sex offender status,

but the principal took no action in response. Clark persuaded N.L. to leave

campus with him and raped her. N.L. sued the district, alleging negligence.

We must decide whether Bethel School District's duty to N.L. ended when

she left campus and whether its alleged negligence, as a matter of law, was               N.L. v. Bethel School Dist., No. 91775-2

not a proximate cause of her injury. The answer to both questions is no. We

affirm.

FACTS

N.L. ran track for Bethel Junior High School. Clark ran track for

Bethel High School's varsity team. The two schools share the track field

between them, and on April 24, 2007, the junior and senior high schools

were both using the field for practice. N.L. alleges that Clark acted as a

coach and mentor to the younger students on both schools' teams. During

practice, a mutual friend introduced N.L. to Clark. The two exchanged

phone numbers and started exchanging text messages. Clark told N.L. he

was 16 years old. He invited her to lunch after school the next day.

Unbeknown to either the junior or senior high school track coach or

apparently any other district employee on the field that day, Clark was a

registered sex offender.

The next day, Clark and N.L. skipped track practice with the

intention, N.L. thought, of going to Burger King for lunch. They left

campus in Clark's car. Clark drove past the Burger King, ostensibly to fetch

2               N.L. v. Bethel School Dist., No. 91775-2

something he had forgotten at home. Instead, Clark took N.L. into his house

and raped her. 1

N.L. told a friend what Clark had done to her. The friend told her

mother, who informed both the school and N.L.'s mother. The school called

the police, and the next month, Clark was charged with third degree rape.

Clark ultimately pleaded guilty to second degree assault.

Clark already had an extensive disciplinary history while in the Bethel

School District by that day in April 2007. By the seventh grade, he had

started making racial slurs and inappropriate sexual comments in class. This

behavior escalated to physical assaults and sexual misconduct against

younger female students. In June 2004, when Clark was 16, he sexually

assaulted another student at Bethel Junior High School. Based on that

assault, Clark was charged with indecent liberties and suspended for the rest

of the school year. That October, Clark pleaded guilty to attempted indecent

liberties, was sentenced to 12 months of community custody, and was

required to register as a level one sex offender. Among other things, he was

1 At several points, the district appears to challenge whether N .L. was raped. E.g., Bethel Sch. Dist.'s Response Br. at 4, 6; Clerk's Papers (CP) at 52,454-56. Since this case is before us on review of summary judgment, we need not resolve this dispute, but we note that N.L. was too young to consent to intercourse with Clark and that she has presented ample evidence that Clark raped her. RCW 9A.44.079; CP at 50, 60, 286. We have declined to allow school districts to attribute fault to students who are raped by their teachers. Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005).

3               NL. v. Bethel School Dist., No. 91775-2

ordered to have no contact with people two or more years younger than

himself. N.L. is four years younger than Clark.

That December, the Pierce County sheriff notified Bethel High

School's principal that Clark was a registered sex offender. There is

considerable evidence in the record that suggests the principal did not inform

Clark's teachers, coaches, or relevant staff of Clark's status. The evidence

also suggests that the principal did not develop a safety plan, let alone one

that would have helped Clark avoid students two or more years younger than

him. The record also suggests there was a district policy in place at the time

that required the principal to inform Clark's teachers of his status. Clerk's

Papers (CP) at 99 (citing District Policy 3143 2); CP at 361-62, 420. The

assistant principal testified he did not know of any such policy.

2 The policy is not in the record. According to the "Bethel School District BoardDocs" webpage, Policy 3143 was adopted in 2003 and says:

A court will notify the common school in which a student is enrolled if the student has been convicted, adjudicated, or entered into a diversion agreement for any of the following offenses: a violent offense, a sex offense, a firearms offense, inhaling toxic fumes, a drug offense, liquor offense, assault, kidnapping, harassment, stalking or arson. The principal must inform any teacher of the student and any other personnel who should be aware of the information. The information may not be further disseminated.

Bethel School District Board Policy Manual, District Notification of Juvenile Offenders, Policy 3143 (2003 ), http://www.boarddocs.com/walbethel/Board.nsf/goto?open&id=9SQUU97DB74A [https://perma.cc/5MCV-3YJA]. The accuracy of this website has not been tested by the parties.

4               NL. v. Bethel School Dist., No. 91775-2

Former Superintendent of Public Instruction Judith Billings analyzed

the district's practices around the time N.L. was raped. Superintendent

Billings observed that "RCW and Bethel District policy require that the

principal 'must inform any teacher of the student and any other personnel

who should be aware ofthe information' of a student's sex offender status."

CP at 300. She also noted that "[m]odel policies for Washington State, the

standard of care recognized and implemented by most school districts - but

not by Bethel - provides that 'other personnel' includes coaches and

counselors, neither ofwhom were informed" of Clark's sex offender status.

!d. She concluded, among other things, that "[t]he haphazard nature of

Bethel's approach to keeping its students safe from registered sex predators

frankly boggles the imagination," and that the district "fell unconscionably

below the accepted standard of care 'to protect students from dangers that

are known or should have been known."' !d. at 302, 304.

In 2012, N.L. sued the Bethel School District for negligence on the

grounds it had failed to take reasonable precautions to protect her from a

known registered sex offender. The district moved for summary judgment,

arguing that it had no duty to N.L. because she was not actually in its

custody at the time she was raped and that N.L's "decision to skip track

practice and leave campus with Clark were 'independent act[s]' that 'br[oke]

5               NL. v. Bethel School Dist., No. 91775-2

the chain of causation."' CP at 20, 21 (alterations in original) (quoting

Riojas v. Grant County Pub. Uti!. Dist., 117 Wn. App. 694, 697, 72 P.3d

1093 (2003)).

The trial judge noted in her oral ruling that "the issue is not so much

the duty as the causation element, and on that basis I'm going to dismiss the

case." Verbatim Tr. of Proceedings (Jan. 10, 2014) at 18. The Court of

Appeals reversed, finding the district had a duty of reasonable care to N.L.

and that there was a genuine issue of fact as to whether any breach of the

duty was a proximate cause ofN.L.'s injury. N.L. v. Bethel Sch. Dist., 187

Wn. App. 460,463, 348 P.3d 1237 (2015). We granted the district's petition

for review. NL. v. Bethel Sch. Dist., 184 Wn.2d 1002, 357 P.3d 665 (2015).

We have received an amicus brief in support of the district from the

Washington State School Directors Association, the Association of

Washington School Principals, and the Washington Association of School

Administrators (WSSDA). The Washington State Association for Justice

Foundation submitted an amicus brief in support ofN.L.

ANALYSIS

To prevail in her negligence suit, N.L. "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." Crowe v. Gaston, 134

6               NL. v. Bethel School Dist., No. 91775-2

Wn.2d 509, 514, 951 P.2d 1118 (1998) (citing Reynolds v. Hicks, 134 Wn.2d

491,495,951 P.2d 761 (1998)). At this summary judgment stage, the

district contests only the intertwined issues of duty and proximate cause.

Thus, they are the only issues before us. CP at 20-21; see also Lowman v.

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

103 Wn.2d 768,779-81, 698 P.2d 77 (1985)).

1. DUTY

Whether a duty exists is a question of law for the court. Aba Sheikh v.

Choe, 156 Wn.2d 441, 448, 128 P.3d 574 (2006) (citing Hertog v. City of

Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999)). "As a general rule, our

common law imposes no duty to prevent a third person from causing

physical injury to another." Aba Sheikh, 156 Wn.2d at 448 (citing

RESTATEMENT(SECOND)OFTORTS § 315 (AM. LAWINST. 1965)). But such

a duty can arise 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 Grp. 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)). "Intentional or

criminal conduct may be foreseeable unless it is 'so highly extraordinary or

improbable as to be wholly beyond the range of expectability. "' Kok v.

7               NL. v. Bethel School Dist., No. 91775-2

Tacoma Sch. Dist. No. 10, 179 Wn. App. 10, 18, 317 P .3d 481 (20 13)

(internal quotation marks omitted) (quoting Niece, 131 Wn.2d at 50).

Washington courts have long recognized that school districts have "an

enhanced and solemn duty" of reasonable care to protect their students.

Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 67, 124 P.3d 283

(2005). This includes the duty to protect their students from the foreseeable

risk of harm the students may inflict on each other. See McLeod v. Grant

County Sch. Dist. No. 128,42 Wn.2d 316,319-20,255 P.2d 360 (1953)

(citing Briscoe v. Sch. Dist. No. 123,32 Wn.2d 353, 362,201 P.2d 697

(1949)); see also JN. v. Bellingham Sch. Dist., 74 Wn. App. 49, 871 P.2d

1106 ( 1994). School districts have the duty "to exercise such care as an

ordinarily responsible and prudent person would exercise under the same or

similar circumstances." Briscoe, 32 Wn.2d at 362 (citing Rice v. School

Dist. No. 302, 140 Wash. 189, 248 Pac. 388 (1926)). Based on McLeod, the

district argues there are two necessary components to its duty to students:

"[(1)] the harm was foreseeable and [(2)] the injury occurred in a custodial

context." Suppl. Br. of Pet'r at 8 (citing McLeod, 42 Wn.2d at 319, 321 ).

The district is correct that in McLeod, we found a duty in part because

the district's authority and obligations had been substituted for the parents'

while the students were in the district's custody. McLeod, 42 Wn.2d at 319.

8               NL. v. Bethel School Dist., No. 91775-2

But McLeod does not suggest that a district's liability for breaches of that

duty is cut off as soon as the student steps off campus.

In McLeod and the cases it relied on, the duty arose, and the injury

occurred, while the student was in the district's custody. McLeod, 42 Wn.2d

at 318; see also Briscoe, 32 Wn.2d at 355, 357 (district potentially liable for

injuries that occurred during unsupervised recess); Eckerson v. Ford's

Prairie Sch. Dist. No. 11, 3 Wn.2d 475,483-84, 101 P.2d 345 (1940)

(district properly held liable for negligent construction and supervision that

resulted in injury after one child slammed door on another). During the

noon recess, several students forced a 12-year-old girl into a small room off

the gymnasium and raped her. McLeod, 42 Wn.2d at 318. The district had

assigned a teacher to watch the students in the gymnasium specifically "for

the purpose of protecting any students from being harmed by other

students." !d. Unfortunately, that teacher "absented himself." !d. We

allowed McLeod's negligence suit to go forward. !d. at 320. We noted the

plaintiff was compelled to attend school and was under the "protective

custody of teachers[, which] mandatorily substituted for that of the parent."

!d. at 319. We found the rape "fell within a general field of danger which

should have been anticipated" given the students' access to a dark and

isolated room. !d. at 321, 322. We concluded that "the duty of a school

9               NL. v. Bethel School Dist., No. 91775-2

district ... is to anticipate dangers which may reasonably be anticipated, and

then to take precautions to protect the pupils in its custody from such

dangers." !d. at 320.

McLeod establishes that school districts have a duty to protect the

students in their custody from foreseeable dangers and that it is foreseeable

that one student might rape another. 42 Wn.2d at 320, 322. The district

insists that McLeod also limits school districts' duties in negligence to

custodial situations. See, e.g., Suppl. Br. of Pet'r at 1. The district seems to

reason that since its duty arose from the fact that its care and custody had

been mandatorily substituted for that of the parents', its duties must end

when the student is no longer in its care and custody. !d. But while the

district's duty to exercise reasonable care might end when the student leaves

its custody, nothing in McLeod suggests that the district's liability for a

breach of duty while the student was in its custody would be cut off merely

because the harm did not occur until later.

The McLeod court had no occasion to consider whether the district's

liability was cut off once the students left campus because both the harm and

the district's alleged negligence happened while the students were squarely

in the district's custody. Here, too, the duty arose while N.L. and Clark were

in the district's custody. Similarly, the alleged breach in both McLeod (the

10               NL. v. Bethel School Dist., No. 91775-2

failure to supervise) and here (failure to take adequate steps to protect

students from a registered sex offender) occurred while the students were all

still in the districts' custody.

Bethel also points to our opinion in Coates v. Tacoma School District

No. 10, 55 Wn.2d 392, 396, 347 P.2d 1093 (1960), as support for the

proposition that a school's duty of reasonable care to prevent injuries is

limited to injuries that happen in the custodial context. Bethel Sch. Dist. 's

Resp. Br. at 18-20. In Coates, a Tacoma student was injured in a drunk

driving accident at 2:00 a.m. on a Sunday in Mason County, allegedly on his

way home from a school club initiation that likely involved drinking. 55

Wn.2d at 393. The student sued, alleging failure to supervise. Id. at 394.

He did not allege that the "club was a curricular or extracurricular activity of

the school district" or that the district had appointed anyone to supervise it.

Id. at 394-95. We dismissed the case on multiple grounds, including how

distant the accident was from the school and the school day. Id. at 394-95.

We observed that

where the event causing the injuries is so distant in time and place from any normal school activity that it would be assumed that the protective custody was in the parents, unless facts and circumstances are alleged which extend the duty of the school district beyond the normal school district-student relationship.

11               N.L. v. Bethel School Dist., No. 91775-2

!d. at 399. This is not the language of a per se rule that a district has a duty

only to students who are in its custody when an injury caused by its

negligence occurs. Instead, the court relied on the fact that the "events

causing the injuries [was] so distant in time and place from any normal

school activity" to relieve the school of liability, not that they were merely

off campus. !d. Here, one of the alleged events causing N.L. 's injury is the

fact the district took inadequate precautions to protect children from a

known risk while on school grounds. We find this case is not analogous to

Coates.

The district finds more support in a Court of Appeals opinion, Scott v.

Blanchet High Sch., 50 Wn. App. 37, 38, 44-45, 747 P.2d 1124 (1987).

There, relying on Coates, the Court of Appeals found that a private high

school was not liable for failing to supervise a student who had "sexual and

romantic activities" with a teacher that grew out of after-school counseling.

!d. at 38, 44-45. The court noted that "[a]t some point ... the event is so

distant in time and place that the responsibility for adequate supervision is

with the parents rather than the school." !d. at 44-45 (citing Coates, 55

Wn.2d at 399). But Scott is not an opinion of this court, and again, "[a]t

some point" is not the language of a per se rule requiring district custody

during the injury for a duty to attach.

12               N.L. v. Bethel School Dist., No. 91775-2

The district does not point to any case that clearly articulates its

suggested rule, and we find none in our case law. The district is absolutely

correct that "[f]or school pupils ... the essential rationale for imposing a

duty 'is that the victim is placed under the control and protection of the other

party, the school, with resulting loss of control to protect himself or

herself.'" N.K. v. Corp. of Presiding Bishop of Church ofJesus Christ of

Latter-Day Saints, 175 Wn. App. 517, 532, 307 P.3d 730 (2013) (quoting

Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 228, 802 P.2d 1360

(1991)). But it does not follow that the victim must be in the school's

custody at the time of the injury for the duty to have existed.

The California Supreme Court rejected a similar proposal some years

ago. See Hoyem v. Manhattan Beach City Sch. Dist., 22 Cal. 3d 508, 515,

585 P.2d 851, 150 Cal. Rptr. 1 (1978). "Contrary to [the district]'s assertion,

no California decision suggests that when a school district fails to properly

supervise a student on school premises, the district can automatically escape

liability simply because the student's ultimate injury occurs off school

property." /d. (citing Calandri v. lone Unified Sch. Dist., 219 Cal. App. 2d

542, 549-50, 33 Cal. Rptr. 333 (1963) (school district liable for injury

student sustained at home as a result of dangerous instrument made in shop

13               N.L. v. Bethel School Dist., No. 91775-2

class)). The court concluded that "the off-campus situs of an injury does not

ipso facto bar recovery from a school district." !d.

While courts across the nation are divided, the California court is far

from alone. The Maryland Supreme Court found that a school district had a

duty to a student who had committed suicide off campus on a school

holiday. Eisel v. Bd. ofEduc., 324 Md. 376, 377, 597 A.2d 447 (1991).

There, the student had expressed suicidal thoughts to friends, who had

repmied it to school officials. School officials questioned the student but

took no other action. Despite the fact the suicide took place off campus and

not during school hours, the court let the wrongful death action go forward,

noting that "[f]oreseeability is the most important variable in the duty

calculus" and given what the district knew, the death was foreseeable. !d. at

386 (citing Ashburn v. Anne Arundel County, 306 Md. 617,628, 510 A.2d

1078 (1986)). As the Idaho Supreme Court observed, "[A] school district

may owe a duty to its students, despite the fact that injury occurred off of

school grounds and outside of school hours." Stoddart v. Pocatello Sch.

Dist. #25, 149 Idaho 679, 684, 239 P.3d 784 (2010) (citing Brooks v. Logan,

127 Idaho 484, 903 P.2d 73 (1995)). 3

3 Amici WSSDA et al. cites nine cases from Louisiana, New York, Idaho, and Florida for the proposition that school districts are not liable for student injuries outside ofthe custodial context. Br. of Am. Cur. WSSDA et al. at 12-16. It is correct that Louisiana

14               N.L. v. Bethel School Dist., No. 91775-2

We hold that districts have a duty of reasonable care toward the

students in their care to protect them from foreseeable dangers that could

result from a breach ofthe district's duty. While the location of the injury is

relevant to many elements of the tort, the mere fact the injury occurs off

campus is not by itself determinative. As the Idaho Supreme Court noted in

a somewhat similar case, "the relevant inquiry is to the location of the

negligence rather than the location of the injury." !d. at 685. Whether the

district breached its duty to take reasonable care to protect N.L. from Clark

is a factual question in this case. 4

In the alternative, the district argues that it had no duty in this case

because, in its view, the harm was not foreseeable because N.L.'s "injury

was the result of criminal conduct" and was ''precipitated by her failure to

and New York have dismissed negligence cases on such grounds. E.g., S.J v. Lafayette Par. Sch. Bd., 41 So. 3d 1119 (La. 2010); Banks v. N. Y City Dep 't of Educ., 70 A.D.3d 988, 990, 895 N.Y.S.2d 512 (N.Y. App. Div. 2010). Florida does not have a per se rule, and, as discussed above, Idaho has rejected the proposition. See Kazanjian v. Sch. Bd., 967 So. 2d 259, 266 (Fla. Dist. Ct. App. 2007). 4 We respectfully disagree with the dissent that "[t]aken to its logical conclusion, if a school has notice of a student's violent tendencies, under the majority's view, it could be found liable for an off-campus, nonschool related assault." Dissent at 8. First, almost nothing in tort law is taken to its logical conclusion because there is almost always a countervailing principle. Second, in this case, taking the facts alleged as true (as we must at this stage), the district gave a registered sex offender the imprimatur of coach and mentor to younger students, knowing that he had previously preyed on young girls. The district put these children in danger without informing any responsible staff member of the sex offender's status, in apparent violation of its own policy. This is a far cry from simply knowing about a student's violent tendencies. Third, the alleged breach happened on campus, while the student was in the school district's custody. In the dissent's hyperbolic counterfactual, no breach of duty occurs on campus.

15               NL. v. Bethel School Dist., No. 91775-2

fulfill her obligations as a student" by skipping an after-school track

practice. Suppl. Br. of Pet'r at 6. "Taken together," it contends, "the

circumstances of the injury in this case are 'so highly ... improbable as to

be wholly beyond the range of expectability. "' !d. (alteration in original)

(quoting McLeod, 42 Wn.2d at 323). It is true that districts have no duty to

prevent unforeseeable harms to their students. See Kok, 179 Wn. App. at 19.

But McLeod explicitly rejected the district's argument that as a matter of

law, student-on-student rape was not foreseeable because student criminal

conduct is not foreseeable or because the intervening act of another student

exonerates the district from its duty. 42 Wn.2d at 321. "The fact that the

danger stems from such an intervening act ... does not itself exonerate a

defendant from negligence. If, under the assumed facts, such intervening

force is reasonably foreseeable, a finding of negligence may be predicated

thereon." !d. at 320 (citing Berglund v. Spokane County, 4 Wn.2d 309, 103

P.2d 355 (1940)). "This principle has special application in cases, such as

the one before us, where the defendant has custody of the plaintiff." !d.

We are left then with the district's argument that 14-year-old N.L.'s

decision to leave campus with Clark changes this calculation as a matter of

law. But "'[f]oreseeability is normally an issue for the jury."' Taggart v.

State, 118 Wn.2d 195, 224, 822 P.2d 243 (1992)) (quoting Christen v. Lee,

16               N.L. v. Bethel School Dist., No. 91775-2

113 Wn.2d 479,492, 780 P.2d 1307 (1989)). We see no reason to depart

from that rule here. Students have been skipping class "[ s]ince at least the

days of Huck Finn and Tom Sawyer." Hoyem, 22 Cal. 3d at 520. We

cannot say as a matter of law that it is unforeseeable that students will leave

campus together.

We affirm the Court of Appeals and hold that the district had a duty to

students to use reasonable care to protect them from foreseeable injuries and

that whether this injury fell within the scope of that duty is properly a

question for the jury.

2. PROXIMATE CAUSE

Next, we are asked whether the trial court properly dismissed on

proximate cause grounds. Proximate cause has two elements: cause in fact

and legal cause. 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 refers to the 'but for' consequences of an act-the

physical connection between an act and an injury." !d. at 778 (citing King v.

City of Seattle, 84 Wn.2d 239, 249, 525 P.2d 228 (1974)). It is normally a

question for the jury. !d. Legal cause "is grounded in policy determinations

as to how far the consequences of a defendant's acts should extend." Crow,

134 Wn.2d at 518. "In deciding whether a defendant's breach of duty is too

17               NL. v. Bethel School Dist., No. 91775-2

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, 178 Wn.2d at 169 (internal quotation marks omitted)

(quoting Hartley, 103 Wn.2d at 779). "[W]here the facts are not in dispute,

legal causation is for the court to decide as a matter of law." Schooley v.

Pinch's Deli Mkt., Inc., 134 Wn.2d 468,478,951 P.2d 749 (1998) (citing

King, 84 Wn.2d at 250). Both legal cause and duty concern the question of

how far the legal consequences of the defendant's negligence should extend.

!d. "There may, of course, be more than one proximate cause of an injury,

and the concurring negligence of a third party does not necessarily break the

causal chain from original negligence to final injury." Smith v. Acme Paving

Co., 16 Wn. App. 389, 396, 558 P.2d 811 (1976) (citing State v. Jacobsen,

74 Wn.2d 36, 442 P.2d 629 (1968)).

The district's summary judgment motion (and the trial court's ruling)

did not clearly articulate whether it was based on legal cause, cause in fact,

or both. The substance of the district's (and its amici) arguments to this

court go to legal cause: whether "'mixed considerations of logic, common

sense, justice, policy, and precedent"' should lead us to conclude any

negligence on the part of the district did not cause N.L.'s injuries. Lowman,

178 Wn.2d at 169 (quoting Hartley, 103 Wn.2d at 779). The district

18               NL. v. Bethel School Dist., No. 91775-2

suggests that '"the connection between the ultimate result and the act of the

defendant is too remote or insubstantial to impose liability."' Suppl. Br. of

Pet'r at 9 (quoting Tyner v. Dep 't of Soc. & Health Servs., 141 Wn.2d 68,

82, 1 P.3d 1148 (2000)).

Sex offender registration began in this state with the community

protection act of 1990. LAws OF 1990, ch. 3, § 402. The act was in response

to several horrific crimes by known sex offenders and was based on the

work of a governor's task force on community protection. Norm Maleng,

The Community Protection Act and the Sexual Violent Predators Statute, 15

U. PUGET SOUND L. REV. 821, 821, 822 n.2 (1992) (citing GOVERNOR'S

TASK FORCE ON CMTY. PROT., DEP'T OF Soc. & HEALTH SERVS., FINAL

REPORT II-2 to II-3 (1989)). Initially, the purpose of registration was to

assist law enforcement investigation of sexual offenses. State v. Ward, 123

Wn.2d 488,493, 869 P.2d 1062 (1994) (quoting LAWS OF 1990, ch. 3, §

401 ). The legislature also authorized law enforcement to notify the

community of a registered sex offender '"when ... necessary to protect the

public and counteract the danger created by the particular offender."' In re

Pers. Restraint of Meyer, 142 Wn.2d 608,613, 16 P.3d 563 (2001) (quoting

LAWS OF 1990, ch. 3, § 117, codified as RCW 4.24.550(1)). In this case, the

Pierce County sheriff deemed it necessary to inform Clark's school of his

19               N.L. v. Bethel Schooi Dist., No. 91775-2

status at least in part so that the institution could take appropriate steps to

counteract the danger he presented. CP at 20, 75-76.

Given this background and the principles set down in lvfcLeod, we

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 ofN.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. See Bryant v. United States, 565 F.2d 650,

654 (lOth Cir. 1977) (whether school's failure to supervise students who

skipped class and were consequently injured in a snowstorm was a

proximate cause of their injuries was properly a matter for the jury); Griego

v. Marquez, 1976-NMCA-022, 89 N.M. 11, 14, 546 P.2d 859 (1976)

(whether intervening act in a second motor vehicle accident was the

proximate cause of injury sustained is a question of fact for the jury); see

also Kok, 179 Wn. App. at 19-20.

We also hold that N.L. has produced sufficient evidence of cause-in-

fact to overcome summary judgment. If the school's track coach had known

that Clark was a registered sex offender who had been convicted of sexually

assaulting a younger girl, he or she could have taken steps to keep Clark

20               N.L. v. Bethel School Dist., No. 91775-2

away from the junior high students, or, at the least, not allowed him to act as

a mentor to younger students as is alleged here. This is a matter for the jury.

CONCLUSION

School districts have a duty to take reasonable care to protect the

children in their custody from foreseeable harm. Whether the district failed

to meet its duty and whether any such failure caused N.L. 's injury are

properly matters for the jury. We affirm the Court of Appeals and remand

for further proceedings consistent with this opinion.

21               N.L. v. Bethel School Dist., No. 91775-2

WE CONCUR:

0~---9 w~r(}=,

~fuNw+.q.

22              

N.L. v. Bethel Sch. Dist.

No. 91775-2

MADSEN, C.J. (dissenting)-! agree with the majority that schools have a "duty

to protect their students from the foreseeable risk of harm the students may inflict on each

other." Majority at 8. However, the majority extends this duty to protect students from

harms inflicted when students are not in a school's custody. This expands the scope of a

school district's duty further than our case law warrants and exposes school districts to

liability for events over which they have no control. Because I would hold that school

districts do not owe a duty to protect students who are not in their custody from the

criminal conduct of other students occurring off school premises, and because I would

hold that even if a duty were breached, it was not the proximate cause ofN.L. 's harm, I

respectfully dissent.

Duty

The majority holds that "districts have a duty of reasonable care toward the

students in their care to protect them from foreseeable dangers that could result from the

breach ofthe district's duty." Majority at 14-15. The holding and iteration of a school

district's duty is, on the surface, nothing new. However, by separating the alleged breach

from the injury, which here occurred a day later after a series of attenuated events over               No. 91775-2 Madsen, C.J. dissenting

which the school had no control, and in another student's home, the duty the majority

actually establishes is that school districts now owe their students a duty to protect them

from harm at all times, regardless of location and custody. The majority reasons that

because there is not "a per se rule that a district has a duty to students who are in its

custody only when an injury caused by its negligence occurs," majority at 11-12, a

district's duty may extend to students' off-campus conduct, even criminal conduct

occurring in the home. However, this court's prior case law does place limits on a school

district's duty-it is to protect students under its care, custody, and supervision from

foreseeable harms.

In McLeod v. Grant County School District No. 128, this court held that "'a duty is

imposed on the school district to take certain precautions to protect the pupils in its

custody from dangers reasonably to be anticipated."' 42 Wn.2d 316, 320, 255 P.2d 360

(1953) (emphasis added) (quoting Briscoe v. Sch. Dist. No. 123, 32 Wn.2d 353, 362, 201

P.2d 697 (1949)). The foundation for McLeod was Restatement (Second) of Torts§ 320

(Am. Law Inst. 1979). Under § 320, a school district must prevent one student from

harming another if the district "(a) knows or has reason to know that [it] has the ability to

control the conduct of third persons, and (b) knows or should know of the necessity and

opportunity for exercising such control." McLeod, 42 Wn.2d at 320 (emphasis added)

(quoting RESTATEMENT§ 320). The school district could control Clark's conduct only if

he were in the district's custody. A school district has neither the ability nor the

opportunity to control students in their own homes. As the trial judge pointed out, "[A]

2               No. 91775-2 Madsen, C.J. dissenting

teacher, an administrator, a coach is not in the role of a CCO, a community corrections

officer." Verbatim Tr. ofProceedings at 18.

Later decisions of this court emphasize that custody is a necessary element of the

special relationship giving rise to a duty. In Coates v. Tacoma School District No. 10, we

held that a school district could not be held liable for injuries that occurred off campus,

outside of school hours, and not related to any school-sponsored activity. 55 Wn.2d 392,

396-97, 347 P.2d 1093 (1960). Specifically, we reasoned:

[T]ranscending these differences [between Coates and McLeodJ is the insistence in the McLeod case that the injured child was compelled to attend school and that she was in the protective custody of the school district while on the school premises for that purpose; whereas, here, the time and place of the plaintiffs injury would normally suggest that the responsibility for adequate supervision ... was with the parents and the institution known as the home.

!d. at 397.

In Carraba v. Anacortes School District No. 103, we extended the duty to

extracurricular, off-campus, school-sponsored events. 72 Wn.2d 939, 956-57,435 P.2d

936 ( 1967). However, we did not eliminate the element of custody from the duty owed to

students. !d. at 955 ("The duty owed by a school district to its pupils ... [is] '[t]o

anticipate reasonably foreseeable dangers and to take precautions protecting the children

in its custody from such dangers."' (emphasis added) (quoting Tardiff v. Shoreline Sch.

Dist., 68 Wn.2d 164, 170, 411 P.2d 889 (1966))); see also Wagenblast v. Odessa Sch.

Dist. No. 105-157-166J, 110 Wn.2d 845, 856,758 P.2d 968 (1988) ("school district owes

a duty to its students to employ ordinary care and to anticipate reasonably foreseeable

3               No. 91775-2 Madsen, C.J. dissenting

dangers so as to take precautions for protecting children in its custody from such

dangers").

Taken together, these cases stand for the general rule that in order for a school

district to owe a duty to its students, the harm must be foreseeable, and it must be in a

custodial context. Later Court of Appeals cases bear this out. In Scott v. Blanchett High

School, plaintiffs brought suit against the high school for injuries arising out of a sexual

relationship between their daughter and a teacher at Blanchett High School. 50 Wn. App.

37, 38, 747 P.2d 1124 (1987). The relationship took place entirely off school grounds,

outside of school hours, not during any school-sponsored activity, and without the

knowledge or consent of the school. !d. at 41-42. Plaintiffs argued that the breach-

failing to take adequate precautions, failure to monitor teachers, and failure to have a

written policy in place forbidding student-teacher relationships-occurred while the

student was in school custody and therefore "locate the tort within the scope of [the

school's] authority." !d. at 45. The court rejected this argument and held the school did

not owe the student a duty, finding that "the responsibility for supervision at the time of

the alleged activities had shifted away from the school" and, further, that "the proximity

between the breach of duty complained of and the alleged injury is so remote that it raises

the possibility of finding proximate cause absent as a matter of law." !d. The court went

on to identify the danger of expanding a school district's liability-which the majority

does here-stating that "[b]y [plaintiff]s' logic, a school which failed to monitor student

relationships and provide adequate sex education would also be liable for teen

4               No. 91775-2 Madsen, C.J. dissenting

pregnancies, regardless of the circumstances, because teen pregnancies are 'within a

general field of danger which should have been anticipated.'" !d. (quoting McLeod, 42

Wn.2d at 321).

In JN. v. Bellingham School District No. 501, a first-grade student, alleging he

had been sexually assaulted by a fourth-grade student in the school bathroom, brought an

action against the school district. 74 Wn. App. 49, 54, 871 P.2d 1106 (1994). Outlining

the school district's duty, the court stated that "when a pupil attends a school, he or she is

subject to the rules and discipline of the school, and the protective custody of the teachers

is substituted for that of the parent." !d. at 56-57. There, the injury occurred while the

student was in school custody and, given the history of aggressive and disruptive

behavior of the assailant, the court concluded that the harm "fell within the general ambit

of hazards which should have been anticipated by the District." !d. at 60.

Applying these cases, I can conclude only that if a student is a registered sex

offender, a school district's duty is to protect its students from being sexually assaulted

by the registered sex offender during school or school-sponsored activities. Given

Clark's history of sexual assault, had he assaulted N.L. while she was in school custody,

the school district would most certainly have owed N.L. a duty to protect her. But a

school district's specific duty is to protect the children in its custody from harm; it is not

to protect children in their homes or in the home of another student from harm. To hold

otherwise would be to expand a school district's liability beyond reason.

5               No. 91775-2 Madsen, C.J. dissenting

The majority says that courts across the nation are divided, majority at 13, but

most courts have held there is no duty if the injury occurs off campus and not during a

school-related event. The majority relies on Hoyem v. Manhattan Beach City School

District, 22 Cal. 3d 508,513,585 P.2d 851 (1978), in which the California Supreme

Court held that a school district may be held liable if the breach of an on campus duty

proximately caused an off-campus injury, but there a 10-year-old boy left campus during

class and was subsequently struck by a motorcycle. 1 The majority also relies on Eisel v.

Board of Education, 324 Md. 376,597 A.2d 447,452-53 (1991), which held a school

board could have a duty to prevent an off-campus, non-school-related suicide. In Eisel,

the student who committed suicide made her intent known to friends, which was then

relayed to a school counselor. !d. at 449-50. The duty of a school counselor with direct

evidence of a student's intent to commit suicide is far different from the duty advocated

by the majority in this case. On the other hand, in addition to our own precedent, courts

in Louisiana, Florida, New York, Kansas, and Idaho have held a school district does not

owe an injured student a duty when that student is off campus. 2 The weight of authority

does not support the majority here.

1 Although I would have decided Hoyem differently, the facts of Hoyem are notably different than the ones here. In Hoyem, the plaintiff was 10 years old and should have been in class. Here, the student was 14 and chose not to attend an extracurricular activity. The breach alleged in Hoyem, letting a student leave school when he should be in class, is far more feasibly avoided than the one alleged here, which is, in essence, allowing a registered sex offender to meet another student. 2 See, e.g., Coates, 55 Wn.2d at 396-97; Scott, 50 Wn. App. at 38; S.J v. Lafayette Par. Sch. Bd., 41 So. 3d 1119, 1126 (La. 2010) (in finding no liability when a student was sexually attacked off

6               No. 91775-2 Madsen, C.J. dissenting

school grounds, while walking home from school, the court stated that "the school board is not the insurer of the safety of the children, and constant supervision of all students is neither possible nor required"); Hayes v. Sheraton Operating Corp., 156 So. 3d 1193, 1198 (La. App. 2014) (in holding a charter school not liable for the rape of a student at an off-campus party hosted at a hotel by a classmate's mother, the court stated that "it is well established that a school board's duty of reasonable supervision is limited to instances where the student is in its custody or control"); B.L. v. Caddo Par. Sch. Bd., 73 So. 3d 458, 460-61 (La. App. 2011) (holding that even if the school were aware of the attacking student's history ofbehavioral problems, the school's duty of care ended when the students left the school premises); Cavalier v. Ward, 723 So. 2d 480, 484 (La. App. 2011) ("The liability of the school board and its employees for injuries to students exists only when the school board has actual custody of the students entrusted to their care."); Kazanjian v. Sch. Bd., 967 So. 2d 259, 264 (Fla. App. 2007) (holding that a school district was not liable for the death of a student who left school without authorization and was killed in a motor vehicle accident); Matallana v. Sch. Bd., 838 So. 2d 1191, 1192 (Fla. App. 2003) (holding that the school had no duty to supervise at the time of an incident that occurred off school premises and was unrelated to any school activities); Concepcion v. Archdiocese of Miami, 693 So. 2d 1103, 1103-04 (Fla. Dist. Ct. App. 1997) (holding that a school owes no "duty of supervision to students during non-school hours when the students are not on the school's premises and not otherwise involved in school related or sponsored activities"); Pratt v. Robinson, 349 N.E.2d 849, 852 (N.Y. 1976) ("The duty owed by a school to its students ... stems from the fact of its physical custody over them .... The school's duty is thus coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases."); Davis v. Marzo, 55 A.D.3d 1404, 1404-05 (S.C. App. Div. N.Y. 2008) ("It is well established that a student who leaves school grounds is not entitled to protection of the school district, and that is the case herein." (citations omitted) (citing Chalen v. Glen Cove Sch. Dist., 29 A.D.3d 508, 509 (S.C. App. Div. N.Y. 2006); Youngs v. Bay Shore Union Free Sch. Dist., 258 A.D. 580, 580 (S.C. App. Div. N.Y. 1999))); Patella v. Ulmer, 518 N.Y.S.2d 91, 93 (N.Y. Sup. Ct. 1987) ("The court has found no precedent for the proposition that a school district is responsible for an injury to a student which occurs off school grounds except where such student was involved in a school sponsored or supervised off-campus activity."); Glaser ex rel. Glaser v. Emporia Unified Sch. Dist. No. 253, 21 P.3d 573, 581 (Kan. 2001) (finding no student-school district duty existed when "the injury occurred off school premises and at a time when the student was not on school property or in school custody"); Honeycutt v. City of Wichita, 836 P.2d 1128, 1140 (Kan. 1992) ("'[a] school district is under no duty to supervise, or provide for the protection of its pupils, on their way home, unless it has undertaken to provide transportation for them'" (alteration in original) (quoting Kerwin v. County of San Mateo, 176 Cal. App. 2d 304, 307, 1 Cal. Rptr 437 (1959))); Stoddart v. Pocatello Sch. Dist. #25, 239 P.3d 784, 790-91 (Idaho 2010) (declining to extend a school district's duty to require it "take reasonable steps to prevent a violent criminal act against a student by a fellow student away from school grounds and not in connection with a school-sponsored activity").

7               No. 91775-2 Madsen, C.J. dissenting

I also agree with the petitioner that the proximity between the duty breached and

the alleged injury is too remote and therefore was not reasonably foreseeable. The breach

alleged is that Bethel School District did not have a sex offender policy in place and, if it

had, N.L. and Clark would never have met. Had Clark never met N.L., then they would

not have texted and planned to leave campus and have lunch and Clark would not have

taken N .L. to his home and would not have raped her. This is very similar to the

argument rejected by the Court of Appeals in Scott. The majority attempts to answer

petitioner's argument-that the harm was not foreseeable because N.L.'s injury was the

result of Clark's criminal conduct after N.L. skipped track practice-by isolating each

element and concluding that each, on its own, is not dispositive. 3 See majority at 15-16.

Each fact in isolation may not be enough to make the injury "so highly extraordinary or

improbable as to be wholly beyond the range of expectability." McLeod, 42 Wn.2d at

323. However, taken together, a school district cannot be expected to foresee that merely

allowing two students to meet would lead to an injury to a student who left campus, went

to the home of another student, and was injured by that student's criminal conduct.

The implications of the majority's decision are far reaching. IfN.L. were Clark's

classmate, the school could not prevent her from being introduced to Clark by a mutual

friend, from exchanging text messages and phone calls with Clark, or from skipping

3 For example, the majority seemingly characterizes McLeod to stand for the proposition that because the court rejected the district's argument that student-on-student rape was not foreseeable, then student on student rape is always foreseeable. Majority at 15-16. However, McLeod held student -on-student rape is foreseeable if there is an area on campus that, if left unsupervised, would give rise to acts of indecency, such as rape.

8               No. 91775-2 Madsen, C.J. dissenting

practice and going to his house, but could still be held liable for a sexual assault. Taken

to its logical conclusion, if a school has notice of a student's violent tendencies, under the

majority's view, it could be found liable for an off-campus, non-school-related assault. If

a school district is aware of a student's emotional or behavioral disorder, 4 it would be

potentially liable for a student's harmful actions off campus, even at a student's own

home. The majority's decision will make school districts the insurers of troubled

students' off-campus conduct.

The majority's decision also imposes an unworkable burden on school districts in

the context of a sex offender. Registered sex offenders have a constitutional right to

attend school. WASH. CONST. art. IX, § 1; Wash. State Office of Superintendent of Pub.

Instruction (OSPI), School Safety Center, Juvenile Sex Offenders in Schools,

http://www .k 12. wa. us/Safetycenter/Offenders/default.aspx [https ://perma.cc/D77S-

YLKJ] ("Juvenile sex offenders in Washington have a continued right to a public

education after their conviction, and many return to public schools after periods of

confinement."). Indeed, their attendance is mandatory. RCW 28A.225.010. Registered

4 "Based on criteria from [Diagnostic and Statistical Manual of Mental Disorders] DSM-IV, 15 to 20% of the entire student population is said to have a clinically significant emotional and/or behavioral disorder at any one time." Larry Matsuda, SEATTLE UNIV., Teaching Students with Severe Emotional and Behavioral Disorder: Best Practices Guide to Intervention 1 (2005), http://www .k 12. wa. us/S pecialEd/F amilies/pubdocs/bestpractices. pdf [https://perma.cc/FU2J- 8A 7E]. The definition of an "emotional and behavioral disorder" (EBD) used in the Individuals with Disabilities Education Act (IDEA) is less inclusive, but would account for 2 percent of the student population. Id. at 2. "Students included within this 2% are primarily those students who have trouble following directions, are oppositional, and who become aggressive toward others." !d.

9 . '• .               No. 91775-2 Madsen, C.J. dissenting

sex offender students also have a right to privacy. 0 'Hartigan v. Dep 't of Pers., 118

Wn.2d 111, 117, 821 P.2d 44 (1991) (recognizing "the right to nondisclosure of intimate

personal information, or confidentiality" (citing Whalen v. Roe, 429 U.S. 589, 599-600,

97 S. Ct. 869, 51 L. Ed. 2d 64 (1977))); see also RCW 9A.44.130; RCW 4.24.550. 5 This

limits what steps a school district may take in order to meet the expanded duty the

majority creates. By expanding the duty to noncustodial situations, the majority

essentially forces a school district to choose between protecting itself from liability and

infringing on its students' constitutional and statutory rights.

Schools in Washington are required to educate all students, including registered

sex offenders and students with criminal records or behavioral issues. To make a school

district liable for a student's criminal off-campus conduct based on the student's

5 The OSPI' s "Model Policy No. 3144" addresses the privacy rights of registered sex offender students. Confidentiality

The principal and school staff will maintain confidentiality regarding these students, the same as all students in the school. Any written information or records received by a principal as a result of a notification are confidential and may not be further disseminated except as provided in a state or federal law.

Inquiries by the Public

Inquiries by the public at large (including parents and students), regarding students required to register as a sex or kidnapping offender are to be referred directly to local law enforcement. Law enforcement agencies receive relevant information about the release of sex and kidnapping offenders into communities and decide when information needs to be released to the public. OSPI, RELEASE OF INFORMATION CONCERNING STUDENT SEXUAL AND KIDNAPPING OFFENDERS 2 (2006), http://www .k 12. wa. us/Safetycenter/Offenders/pubdocs/ModelPo licyOffenders. pdf [https://perma.cc/P4M9-8U6E].

10 . .. .               No. 91775-2 Madsen, C.J. dissenting

enrollment at school and the district's knowledge of a student's behavioral issues creates

an overreaching and unworkable responsibility on school districts statewide. Because the

injury did not occur on school property or during the course of any school-related

activity, was the result of criminal conduct, and occurred after both N.L. and Clark

voluntarily left school together, I would hold that the school district did not owe a duty of

care to N .L. as a matter of law.

Proximate Cause

The absence of a duty owed is enough to affirm the trial court; however, I would

also hold that proximate cause is absent. Proximate cause is composed of both "cause in

fact" and "legal causation." Hertog v. City of Seattle, 138 Wn.2d 265, 282-83, 979 P.2d

400 (1999). The majority states that cause in fact "is normally a question for the jury,"

majority at 17, and that N.L. has produced sufficient evidence of cause in fact to allow a

jury to decide. !d. at 20. Normally it is a question for the jury, but "if reasonable minds

could not differ, these factual questions may be determined as a matter of law." Hertog,

138 Wn.2d at 275. "'[C]ause in fact[] exists when the act of the defendant is a necessary

antecedent of the consequences for which recovery is sought."' Coates, 55 Wn.2d at 398

(quoting Eckerson v. Ford's Prairie Sch. Dist. No. 11, 3 Wn.2d 475, 482, 101 P.2d 345

(1940)). Here, Clark and N.L. were introduced by a mutual friend. The meeting took

"just took a couple seconds." Clerk's Papers at 52. The alleged breach is that if Bethel

School District had had a better policy in place for Clark, or if more teachers and coaches

had known about his status as a sex offender, this meeting would have been prevented.

11 . .. " . '. .               No. 91775-2 Madsen, C.J. dissenting

But the school did not introduce them; a mutual friend did. This same mutual friend gave

Clark's phone number to N.L., and N.L. and Clark subsequently exchanged phone calls

and text messages. In these communications, Clark asked N.L. if she wanted to go to

lunch with him. They both skipped track practice the next day and left school together.

It was at this point that Clark took N.L. to his home and sexually assaulted her. The

breach alleged, therefore, is not that the district did not have a policy in place, but rather

that the school allowed a registered sex offender to meet another student. Even if the

school district had a policy, and even if it implemented a plan that directed Clark to stay

away from younger female students, and we had the same facts presented here, it could

not have prevented Clark and N.L. being introduced by a mutual friend. The alleged

breach-allowing a registered sex offender to meet and interact with classmates-cannot

be prevented short of isolating registered sex offenders from their classmates because of

their status or notifying students and their parents of its students' sex offender statuses. A

school district could not accomplish this without infringing on a student's constitutional

rights.

Additionally, even a robust policy could not have prevented the injurious conduct,

which was not the fact that N.L. and Clark met; rather, the injury was a rape that occurred

at a later time in a private home outside the school's supervision. These are independent

intervening acts that interrupted the chain of causation. To say that the exact sequence of

the events leading to the harm need not be foreseeable does not change this. I cannot say

that but for the school district's alleged negligence, N.L. would not have been assaulted.

12 . f. . . .. .               No. 91775-2 Madsen, C.J. dissenting

I would also hold that, as a matter of law, there is no legal causation. 6 "The focus

in a legal causation analysis is on '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."' Tyner v. Dep 't of Soc. & Health Servs., 141 Wn.2d 68, 82, 1 P.3d 1148 (2000)

(quoting Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468,478-79, 951 P.2d 749

(1998) ). We do so because "a negligent act should have some end to its legal

consequences." Hunsley v. Giard, 87 Wn.2d 424, 435, 553 P.2d 1096 (1976). Because

"analyses of duty and proximate cause often overlap and are always subject to policy

considerations," the arguments regarding foreseeability and policy considerations set

forth in the duty analysis apply equally here. Travis v. Bohannon, 128 Wn. App. 231,

242, 115 P.3d 342 (2005) (citing Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77

(1985)). Additionally, we do not have a "'direct unbroken sequence"' of events. Kim v.

Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001) (quoting Hertog,

138 Wn.2d at 282). This case is most similar to Scott, in which "the responsibility for

supervision at the time of the alleged activities had shifted away from the school." 50

Wn. App. at 45 (emphasis added). To allow causation to run from a school district's

alleged on-campus breach of duty-essentially allowing a mutual friend to introduce two

students-to an injury that occurred the following day, off-campus, and at a private

6 The majority's legal causation analysis rests on the fact that given the background of the community protection act and the principles set down in McLeod, they cannot say as a matter of law that the school district's negligence was not a legal cause ofN.L.'s injury. Had the injury occurred while N.L. was in the custody of the school, I would agree.

13 . '. . . .. ~

              No. 91775-2 Madsen, C.J. dissenting

residence, would create open-ended liability and impose an "enormous burden ... [on]

school districts." Stoddart v. Pocatello Sch. Dist. #25, 239 P.3d 784, 791 (Idaho 2010). 7

Therefore, I would hold that the injury in this case was too attenuated as a matter of law.

Because a school district does not owe a duty of care to students who are injured

by the criminal conduct of other students while not in the custody of the school district,

and because the plaintiff has failed to establish proximate cause as a matter of law, I

would affirm the trial court. Accordingly, I respectfully dissent.

7 The majority cites to this case for the proposition that "[A] school district may owe a duty to its students, despite the fact that injury occurred off of school grounds and outside of school hours." Majority at 14 (alteration in original) (quoting Stoddart, 239 P.3d at 789). While the Idaho Supreme Court did say this, it declined to extend the scope of a school district's general duty "to require that a school district take reasonable steps to prevent a violent criminal act against a student by a fellow student away from school grounds and not in connection with a school- sponsored activity." Stoddart, 239 P.3d at 790-91.

14 ' ' . . .. '

              No. 91775-2 Madsen, C.J. dissenting