In Richardson v. Trenton Special School Dist., No. W2015-01608-COA-R3-CV (Tenn. Ct. App. June 27, 2016), the Court of Appeals reversed summary judgment in a negligence case due to fact issues surrounding the issue of foreseeability.
The underlying facts of this case were quite disturbing—a six-year old kindergarten student was allegedly sexually assaulted five times by another six-year-old student in an elementary school bathroom stall. It was undisputed that before this incident, another student had been sexually assaulted by a peer at this school, though that incident involved first or second graders in the after-school care program. During the after-school incident the two children were in the bathroom alone, but in the incident underlying this case other students were in the bathroom and the teacher was in the hallway between two bathrooms. It was further undisputed that after the after-care assault, “the elementary school changed its bathroom policy in the after-school care program in direct response to the prior assault such that teachers accompany students into the bathrooms. However, the school did not change its policy concerning the main school day.” At the time of the kindergarten assault, the school had a policy stating: “CHILDREN MUST NEVER BE OUT OF SIGHT!!! Monitor your students in the halls and bathrooms.”
The victim’s parents filed suit, alleging that the school “was negligent because its employee had violated the school’s policy and that this violation resulted in a failure to protect [the child].” The defendant school moved for summary judgment, with the trial court granted, finding that the assault was not reasonably foreseeable. The Court of Appeals, however, reversed.