N.L. v. Bethel Sch. Dist. ( 2016 )

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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
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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).
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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.
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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]
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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
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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,
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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
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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
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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:
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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
15