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October, 2016
Appeals Court Resurrects Student’s Claim Against School District On Ground of Instructional Error
by Andrew Bergh

Hopkins v. Seattle Public School District No. 1, __ Wn. App. __ (2016), which arose from a student assault at a middle school in King County, is a perfect example of how pattern jury instructions don’t always suffice.

The alleged assault took place just over 10 years ago at Aki Kurose Middle School, a public secondary school located in the Rainier Valley in southeast Seattle.

John Hopkins Jr. and another male, described in pleadings by only his initials E.E., were both then students at the middle school. Except for physical education, however, E.E. – for unclear reasons – only attended special education classes.

The fateful day was June 7, 2006. Following their PE class, the two students were in the boys’ locker room when E.E. suddenly punched Hopkins in the back of the head, causing Hopkins to fall to the ground and break his jaw. (Whether Hopkins fully recovered from his injury is unknown.)

The statute of limitations was tolled on account of Hopkins’ minority. While it’s unclear whether he ever pursued a claim against E.E., Hopkins eventually filed suit against Seattle School District No. 1 in early November 2013, seeking damages for negligence and negligent supervision. His complaint alleged, among other things, that the school district knew E.E. “was a danger to himself and others,” and that defendant “owed a duty to Hopkins to supervise its employees to ensure Hopkins would be free from physical harm while under [its] custody and control.” The school district denied these allegations and asserted several affirmative defenses, including contributory negligence.

Prior to trial, Hopkins moved for summary judgment on liability. The cornerstone of his argument was a case decided over 60 years ago by the Washington Supreme Court. Apparently by everyone’s account, McLeod v. Grant County School District No. 128, 42 Wn.2d 316 (1953), is the leading case on the “special relationship” and the duty owed by a school district to protect its students from foreseeable harm.

In its response, the school district, while conceding that it owed a duty to exercise reasonable care when supervising students in its custody, argued that there were material questions of fact regarding foreseeability. In apparent concurrence, the trial court denied plaintiff’s motion.

Foreseeability was a recurring issue when the case proceeded to trial. For example, in his opening statement to the jury, Hopkins’ lawyer said the defendant had an obligation to protect all students from foreseeable harm, and that the school district had breached its duty of care by failing to supervise E.E. when it knew he was likely to assault other students, and also by failing to protect Hopkins from the attack. Defense counsel, on other hand, told the jury the school district had exercised reasonable care in supervising E.E. – and that it couldn’t have prevented the “spontaneous and impulsive assault” which Hopkins had allegedly provoked.

Near the end of trial, the parties submitted their proposed jury instructions, including those relating to liability. For its part, the school district relied exclusively on two standard pattern jury instructions – specifically, the definition of negligence (WPI 10.01) and the definition of ordinary care (WPI 10.02).

Hopkins had no quarrel with these two instructions. Indeed, he had used and incorporated the WPI definitions of negligence and ordinary into his own proposed instructions. According to Hopkins, however, it was “critical” for the trial court to go one step further and give his other proposed instructions relating to the special relationship and duty owed by the school district.

More specifically, here is what Hopkins offered in one of his proposed instructions:

A school official stands in the place of a parent when the student is in the school’s custody. The placement of children under a school’s custody and control gives rise to a duty on the part of the school to exercise ordinary care to protect students in its custody from reasonably anticipated dangers, including from the intentional or criminal conduct of third parties. (My emphasis.)

Elsewhere, plaintiff proposed the following:

A school district fails to exercise ordinary care to protect students if it fails to anticipate dangers that may reasonably be anticipated or to take reasonable precautions to prevent the harm from occurring. (My emphasis.)

And finally, Hopkins included the following in yet another proposed instruction:

Whether a risk of harm is reasonably foreseeable under the same or similar circumstances depends upon the particular defendant’s characteristics and experience. Where the disturbed, aggressive nature of a child is known to school authorities, proper supervision requires the taking of specific, appropriate procedures for the protection of other children from the potential for harm caused by such behavior. (My emphasis.)

According to Hopkins, McLeod v. Grant County School District No. 128, supra, mandated that all of his proposed instructions be given. The school district vociferously objected, claiming the instructions were “argumentative, misleading, and incorrect.” Defendant won Round One because when the trial court circulated its proposed jury instructions the next day, they included the standard definitions of negligence and ordinary care from WPI 10.01 and WPI 10.02 – but the additional instructions on duty proposed by Hopkins were conspicuously absent.

There was further colloquy between the parties and the trial court regarding jury instructions before the case was submitted to the jury. According to defendant, a separate instruction on the special relationship between a school district and its students was “unnecessary.” Plaintiff meanwhile countered, among other things, with the following:

This is not a cookie cutter case. This involved misconduct of an intentional actor, and it involves a school district that has a special relationship and obligation to Mr. Hopkins. I believe it would be error for the Court not to instruct the jury on the specific duty owed by the school district and provide some instruction on what the duty means when it pertains to intentional acts or misconduct of third parties.

All this fell on deaf ears, however, as the trial court stuck to its guns, concluding that the language in Hopkins’ proposed instructions regarding the school district’s duty and foreseeability was “argumentative” and “inflammatory.”

By special verdict, a King County jury thereafter found in favor of defendant. The trial court subsequently entered judgment on the verdict and dismissed the lawsuit. And Hopkins timely appealed.

There was nothing convoluted about the primary issue on appeal: Whether the trial court had erred by failing to instruct the jury on the special relationship and duty of a school district to use reasonable care to protect a student in its custody from foreseeable harm.

Approximately two months ago, plaintiff received very favorable news from the Washington Court of Appeals (Division One).

Under Washington law, alleged errors in jury instructions are reviewed de novo. In conducting its review, the Hopkins court noted that jury instructions are sufficient if they:

Are supported by the evidence;
Allow each party to argue its theory of the case;
Are not misleading; and
When read as a whole, properly inform the trier of fact of the applicable law.

If any of these elements is missing, said the Court of Appeals, the instruction is erroneous. Moreover, if the instruction misstates the law, prejudice is presumed and requires reversal unless the error was harmless.

Predictably, Division One focused on McLeod v. Grant County School District No. 128, which it described as the “leading authority” on the duty of a school district. In particular, the Court of Appeals emphasized two duty-shaping factors identified in McLeod.

The first factor, said Division One, is the special relationship which exists by virtue of the affiliation between a school district and its students. Quoting from McLeod, the Hopkins court elaborated as follows:

The relationship here in question is that of school district and school child. It is not a voluntary relationship. The child is compelled to attend school. He must yield obedience to school rules and discipline formulated and enforced pursuant to statute… The result is that the protective custody of teachers is mandatorily substituted for that of the parent.

The second factor, said the Court of Appeals, relates to the duties arising from this special relationship – specifically, the duty of a school district “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect the pupils in its custody from such dangers.”

Here, it’s important to note that the standard definitions of negligence and ordinary care in WPI 10.01 and WPI 10.02 nowhere say anything at all about foreseeability. According to the school district, there was no reason to additionally instruct the jury on foreseeability because that would’ve been “an unnecessary elaboration” on the duty of ordinary care. But clearly, the duty to anticipate dangers which may be reasonably anticipated – as is required under McLeod – necessarily triggers at least some form of foreseeability analysis.

At the end of the day, Division One sided with Hopkins:

We hold the court erred in failing to give jury instructions on the special relationship and duty of the School District to exercise reasonable care to protect students from foreseeable harm. Because the instructions given allowed the jury to apply an ordinary negligence standard without regard to the special relationship and duty of the School District, the error was not harmless and prevented Hopkins from arguing his theory of the case. We reverse and remand for a new trial.

Sadly, violence at all levels of our educational institutions, including middle school, high school and college campuses, has become way too commonplace in our society. Hopkins is a compelling reminder, however, that Washington has well-established case law imposing a duty on school districts to exercise reasonable care to protect students in their custody from foreseeable harm.

Another takeaway from Hopkins relates to jury instructions. Although the WPI are undeniably an invaluable resource for Washington litigators – not to mention strongly preferred by most trial courts throughout the state – the fact remains that they are not encyclopedic and oftentimes just provide a starting point. If there is compelling black letter law on your side, don’t feel confined by the WPI and don’t hesitate to draft and propose supplemental instructions. And like Hopkins’ lawyer, don’t beat around the bush if you genuinely believe the trial court will be committing error by refusing to give your proffered instructions – just complete your record and move on. Effective advocacy requires nothing less.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.