School Liability for Harm to Students

By Jeff Herman

School is back in session, and some of the more sociopathic students-I mean excitable youngsters-will soon be assaulting and robbing their weaker classmates with their customary enthusiasm. This article addresses when a school has a duty to physically protect students from other students.

Mandatory Attendance

In Washington, children between eight and sixteen must attend school, or risk criminal sanctions and punishment for contempt. RCW 28A.225.010 provides that children must attend the public school they are assigned to, unless they are attending private school, home schooling, or another equivalent. RCW 28A.225.090 provides that a court may order a child to attend the child’s current school. The court may also order the child to switch to another public school, an alternative school, a “skill center,” a dropout prevention program, or a private nonsectarian school. The court may also order the child referred to a community truancy board to enforce attendance.

In exercising these powers, the court may compel drug or alcohol testing if it “will facilitate the child’s compliance with the mandatory attendance law,” and may also compel compliance with drug or alcohol treatment. If the child does not obey the court’s order, the court may incarcerate the child under RCW 7.21.030 (2) (e). Children have no right to a jury trial in Washington, even for a murder prosecution, unless Juvenile Court “declines” to exercise jurisdiction. The child may also be jailed for contempt without even the loose formalities of a Juvenile Court trial.

In short, children are either forced to attend school, which can be a dangerous place, or they are incarcerated at Juvenile Hall, a more dangerous place-where they will be forced to attend school.

School Liability for Violence

Even before the Columbine shootings, American schools were recognized as among the most violent settings in our society. A review of the Washington cases reveals that schools have a duty to protect students from foreseeable harms including violence committed by other students. “The extent of the duty thus imposed upon the respondent school district, in relation to its supervision of the pupils within its custody, is that it is required to exercise such care as an ordinarily reasonable and prudent person would exercise under the same or similar circumstances.” Briscoe v. School District 123, 32 Wn. 2d 353, 201 P.2d 697 (1949). A school has a duty “to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect the pupils in its custody from such dangers.” McLeod v. Grant Co. School District, 42 Wn. 2d 316, 255 P.2d 360 (1953).

Liability for Extracurricular Activities

Whether a school is liable for an injury generally turns on whether the injury occurred on school premises during school hours. If it did, the school will probably be liable, even if the injury stems from criminal conduct by a fellow student. If it occurred off-campus at a school-sponsored event, the school may still be liable. If it occurred off-campus at a non-sponsored event, the school probably is not liable. For example, in Briscoe v. School District 123, the student was injured playing keep-away at recess on an unsupervised playground, and the school was liable. But a school’s liability is not limited to actions arising during the normal school day, on school property, or during curricular activities. See Sherwood v. Moxee School Dist. No. 90, 58 Wn.2d 351, 363 P.2d 138 (1961). The school may even be liable for injuries occurring during a sponsored athletic event after hours. See Carabba v. Anacortes School District, 72 Wn.2d 939, 435 P.2d 936 (1967).

There are limits to after-school liability: “At some point, however, the event is so distant in time and place that the responsibility for adequate supervision is with the parents rather than the school.” See Scott v. Blanchet, 50 Wn. App. 37, 747 P.2d 1124 (1987), citing Coates v. Tacoma School Dist. No. 10, 55 Wn. 2d 392, 399, 347 P.2d 1093 (1960). This “at some point” rule seems to make the school responsible for all physical risks and foreseeable assaults occurring during the school day, or on school premises, or during school-sanctioned activities. It does not set an outer limit of liability. The Scott court punted this issue, holding: “Thus, the initial question in a negligent supervision claim is whether the tort was committed within the school’s scope of authority.” Rhea v. Grandview School Dist. No. JT 116-200, 39 Wn. App. 557, 560, 694 P.2d 666 (1985).

Liability for Sexual Conduct

A school may even be liable for a forcible rape committed by students, where the rape occurred on school premises during school hours in an unsupervised, darkened room. See McLeod v. Grant Co. School District, 42 Wn. 2d 316, 255 P.2d 360 (1953). The court held in McLeod: “It is not a voluntary relationship. The child is compelled to attend school....The result is that the protective custody of teachers is mandatorily substituted for that of the parent.” See McLeod at 319. This rule applies with particular force where the school knows the student-assailant is violent, and therefore his acts are foreseeable. “A school district’s duty requires that it exercise reasonable care to protect students from physical hazards in the school building or on school grounds. It also requires that the district exercise reasonable care to protect students from the harmful actions of fellow students, a teacher, or other third persons.” Peck v. Siau, 65 Wn. App. 285, 827 P.2d 1108 (1992), see also J.N. v. Bellingham School District, 74 Wn. App. 49, 871 P.2d 1106 (1994). The school’s duty to protect from assaults is limited by foreseeability, so the wise litigator will get the assailant’s records to prove foreseeability.

The courts have been reluctant to impose a duty on schools to supervise their teachers, when such teachers are accused of sexual assault. For example, in Scott v. Blanchet, 50 Wn. App. 37, 747 P.2d 1124 (1987), a high school teacher in a parochial school engaged in extensive “counseling” with his student, culminating in a sexual relationship. The student wound up in bed with the teacher, drinking champagne, and described the relationship as “romantic.” Division I found no reason to infer that the school negligently hired or supervised the teacher, and affirmed a summary judgment of dismissal.

Cases such as McLeod and Scott lead to a strange result. A school is liable for a rape committed by a student who it is statutorily required to serve, so long as the rape was reasonably foreseeable. However, the school may not be liable for a rape committed by a teacher, even though the school had the opportunity to screen the teacher, and to supervise or terminate him or her.

In conclusion, if a student is injured at school by a physical defect, or by another student, he or she probably has a cause of action. If a student is injured by a teacher, it will be more difficult to prove liability. Perhaps, given the current state of the law, keeping a child under “adult supervision” is not as safe as it sounds.