Rush v. Corvallis Sch. Dist. 509J

419 P.3d 746, 291 Or. App. 252
CourtCourt of Appeals of Oregon
DecidedApril 11, 2018
DocketA160464
StatusPublished
Cited by2 cases

This text of 419 P.3d 746 (Rush v. Corvallis Sch. Dist. 509J) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rush v. Corvallis Sch. Dist. 509J, 419 P.3d 746, 291 Or. App. 252 (Or. Ct. App. 2018).

Opinion

ORTEGA, P. J.

*253Plaintiff, a high school student, suffered injuries when she was assaulted by another student, Carmack, while trying to stop a fight between Carmack and Jones across the street from Corvallis High School (CHS) during CHS's lunch period. As a result, plaintiff brought a negligence action against defendant Corvallis School District 509J. As relevant on appeal, plaintiff's negligence allegations fell into two general categories: (1) the district failed to supervise the students involved and (2) the district failed to follow and enforce its discipline protocols and anti-violence policies despite knowledge of potential violence between Carmack and Jones. The district moved for summary judgment, arguing that it provided supervision of students during CHS's lunch period, and that decisions as to the manner in which it supervised students on CHS's campus and at off-campus locations during the lunch period were entitled to discretionary immunity. Further, as to plaintiff's allegations that defendant failed to follow its policies even though it knew of the potential for violence between Carmack and Jones, the district asserted that there was no evidence that the district knew or reasonably should have known of the impending fight between Jones and Carmack. The trial court granted summary judgment to defendant and entered judgment dismissing plaintiff's claims. Plaintiff challenges that ruling on appeal, and we affirm.

In reviewing the trial court's summary judgment ruling, we view the evidence in the record in the light most favorable to plaintiff-the nonmoving party-to determine whether there are genuine issues of material fact that preclude summary judgment and whether defendant was entitled to judgment as a matter of law. ORCP 47 C. We state the facts consistently with that standard.

At the time of the assault, plaintiff attended CHS along with Carmack and Jones. CHS was an "open campus," which meant that students could leave campus grounds during the lunch period. One school day during lunch, plaintiff accompanied Jones to an open lot across the street from CHS's campus, located at the intersection of NW 13th Street and NW Buchanan Avenue. Students and staff at CHS were *254aware that students frequently congregated at that location during lunch or open periods. After Jones and plaintiff arrived, Carmack attempted to fight Jones. Plaintiff and other students tried to prevent the fight. Carmack turned on plaintiff and assaulted her, causing facial fractures, a concussion, and other traumatic injuries. CHS staff were not present at the 13th Street location immediately before or during the assault.

Plaintiff brought a negligence action against the district. The following specific allegations of negligence are at issue on appeal:

"The conduct of defendant Corvallis School District 509J was negligent in one or more of the following ways:
"(a) In failing and neglecting to supervise the plaintiff and defendant Carmack while the minors were in their care and custody;
"* * * * *
"(d) In failing and neglecting to follow its own discipline protocols relating to threats of violence;
"* * * * *
"(f) In failing and neglecting to supervise CHS students during the lunch period at 13th Street, when defendants knew or reasonably should have known that previous fights had occurred at this location and it was likely that further acts of violence would occur at this location;
*748"(g) In failing and neglecting to enforce its anti-violence policies[.]"

Defendant asserted the affirmative defense of discretionary immunity under ORS 30.265(6)(c) and eventually moved for summary judgment, arguing that it was entitled to immunity on allegations (a) and (f), because those allegations challenged policy decisions made by the district. The district also asserted that it was entitled to summary judgment on allegations (d) and (g), because the record lacked any evidence that the district knew or should have known of the impending fight between Jones and Carmack.

Plaintiff opposed summary judgment, arguing that defendant misunderstood allegations (a) and (f). According *255to plaintiff, the choice of CHS's principal to allow an open campus was "essentially a choice to not supervise students during the lunch hour and open periods." In plaintiff's view, the choice not to supervise students during the lunch period was an impermissible choice not to exercise any care over students despite the duty to do so. Plaintiff clarified that it was not faulting defendant for "the way it exercised supervision of students within the premises but for its failure to supervise the students at all during periods of the day that it allowed students to leave the premises." As to allegations (d) and (g), plaintiff sought to avoid summary judgment with evidence that Jones and Carmack had a verbal altercation in the school lunchroom a week before the assault, that CHS staff was aware that bullying had occurred that involved Jones, and that Carmack had told a police officer that "everybody knew" she wanted to fight Jones.

Defendant replied to plaintiff's opposition, asserting that uncontroverted evidence in the summary judgment record demonstrated that defendant did in fact provide supervision of students both on and off-campus during the lunch period at CHS. In defendant's view, that meant that plaintiff could not prove that defendant failed to provide any supervision of students. Defendant further argued that, if plaintiff's allegations were understood to assert that defendant was negligent because it did not have any staff at the 13th Street location at the time of the assault, that staffing decision was protected by discretionary immunity.

The trial court explained in a letter opinion that the district was entitled to summary judgment as to allegations (a) and (f), because the "undisputed record of admissible evidence" showed that defendant provided supervision of students during the lunch hour on CHS campus and at the 13th Street location off campus. The court noted that CHS's security supervisor did not have a specific supervision plan that required him to be at certain places at certain times, but that decisions as to the number and location of security personnel within a high school were discretionary policy choices entitled to immunity under ORS 30.265(6)(c). As to the remaining negligence allegations, the court concluded that there was no admissible evidence showing that *256defendant "had any knowledge or could have had any knowledge" that Jones and Carmack "were going to get into a fight at the location off campus during the lunch hour" on that day. Accordingly, the court determined that no reasonable factfinder could return a verdict for plaintiff on allegations that the district failed to follow its discipline and anti-violence policies in the matter.

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Bluebook (online)
419 P.3d 746, 291 Or. App. 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rush-v-corvallis-sch-dist-509j-orctapp-2018.