On August 29, 2016, the Washington State Court of Appeals (Division I) issued a published decision involving claims against the Bellevue School District regarding the bullying and retaliation the school bus. The case itself involves some legal technicalities, specifically around jury instructions. Specifically the question was essentially whether the trial court erred in using the statutory definition in the harassment, bullying, and intimidation statutory statute in a jury instruction and whether that created an improper higher standard for the family to meet in their negligence suit.
Allen & Jennifer Quynn, Appellants v. Bellevue School District, Respondent; Docket No. 73825-9; Opinion Author – Dwyer; joined by Becker and Trickey; Attorney for Appellants – Katherine George; Attorney for Respondents James Baker and Kenneth Masters.
Parents sued the Bellevue School District, claiming that the district had been negligent in failing to protect their daughter (while the child is referenced by her name in appeal, to increase her privacy, she will be referred to as “Daughter”) from harassment, intimidation, and bullying that she suffered while riding the school bus during her eighth grade year of middle school. A group of boys where allegedly targeting female students and Daughter reported an especially serious incident. She then became the focus of the boys’ aggression. There was name calling, groping, and having items thrown at her that resulted in welts.
She did not report the harassment, intimidation, and bullying that occurred against her after her report. The claim in the case is that the District knew or should have known that bullying was a likely result from the reporting and the school should have done more to ensure Daughter’s safety.
The Family challenged the decision with regard to a jury instruction regarding the duty of the school district and the definition of harassment, intimidation and bullying. They challenged based on (1) The district owed the child the highest duty of care, one applicable to common carriers, (2) inclusion of the definition of harassment, intimidation, and bullying unfairly limited the reach of their negligence claim, and (3) the instruction improperly articulated the duty and responsibility owed to Daughter by the district.
Appellate Court Opinion
The Court of Appeals agreed that school districts have a special relationship with students that gives rise to a duty of care to prevent a third party from causing physical injury to another. This case cites McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953), which held that because a child is compelled to attend school and has an involuntary relationship with the school district, the district has a duty “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect pupils in its custody from such dangers.”
In this case, the Court of Appeals disagreed with the family that School Districts are required to provide the highest level of care on school buses. Instead the court held that the standard of care on a school bus, regarding the behavior of children, versus how a bus is driven, is the same as it would be anywhere else at school – reasonable care, “as it supervises the pupils within its custody, the district is required to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances…The basic idea is that a school district has the power to control the conduct of its students while they are in school or engaged in school activities and with that power goes the responsibility of reasonable supervision.”
The Court of Appeals distinguished the heightened duty of a common carrier, which they linked to activities related to driving a bus from a lower level of duty, which they believed was more appropriate for behaviors of students on the bus. Basically the heightened duty of car is for driving functions, including making sure you use the stop sign so children can cross safely; reasonable care must be used with regard to the behavior of the children.
The next question involved a jury instruction that used the statutory language of the state harassment, intimidation and bullying law (“HIB Law”). In discussing the use of the statutory language in the instruction regarding negligence, the Court of Appeals noted that the HIB Law does not create a private right of action (meaning the HIB Law doesn’t allow parents to sue, so it’s not appropriate to use that definition when the suit doesn’t arise out of that law). The Court of Appeals found that by imposing the administrative definition of “harassment, intimidation, and bullying” the trial court improperly restricted the scope of the tort claim, which had the impact of requiring enhanced elements of proof in order to prevail.
Translation: the suit was regarding the school’s negligence. Instead of focusing on the question of whether the school was negligent, the jury was instructed to look at the HIB Law definition and determine whether the behavior of the bullying students reached a a level of physical harm, “substantially interfering with a student’s education” or “substantially disrupting the orderly operation of the school.”
The law around negligence not require physical harm. The court stated, “Indeed, to suggest that a bullied student cannot recover for emotional or psychological harm in the absence of actual physical injury runs completely counter to the analysis in McLeod.”
On top of the fact that physical harm is not required, proving that behavior had a “substantial” impact on a student or the school is a much higher burden than proving a school was negligent. The depth of the harm in a tort/negligence action is typically dealt with in determining the amount of damages (if any) and not whether the school was actually negligent.
The Court of Appeals said the error in this case required a new trial. As is all to often the case in cases involving schools, the litigation goes on longer than children are even in school. The incidents in this case occurred around December 2010. Now, in September 2016, the case is being sent down for another trial (that’s if the school district doesn’t appeal this ruling, if this ruling gets appealed and goes to the State Supreme Court and is heard and affirmed by the Washington State Supreme Court, resolution through a litigation process is likely still years off. The child was in the 8th grade when this incident occurred. Hopefully she’s in college now.