Sexual Assault in School: Duty Turns on Material Fact Dispute

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.

In analyzing this case, the Court of Appeals spent a lot of time discussing the impact of foreseeability on a negligence case, noting that foreseeability plays into the questions of whether a duty is owed, whether a duty was breached, and whether the element of causation can be shown. Here, the trial court granted summary judgment based on a lack of foreseeability, and it relied on two other cases involving student-on-student sexual assault in a school. In both of these other cases, summary judgment was affirmed because the incidents were unforeseeable to the schools, meaning that the element of proximate causation was negated. Thus, the Court interpreted the trial court’s ruling in the instant matter to mean that the trial court had determined that the plaintiff could not show proximate cause, a ruling the Court of Appeals reversed.

Based on the trial court’s reliance on the two previous cases and the arguments presented by defendant school, the Court of Appeals stated that “it appear[ed] that Appellees interpret [the other cases] to stand for the proposition that any sexual assault between children is unforeseeable as a matter of law. Such an interpretation, however, is entirely too broad.” The Court pointed out several distinctions between the previous cases and the one at issue here—in the previous cases, no similar assaults had occurred, whereas here an arguably similar one had happened in the after-care program. In addition, here there was a “policy that could be deemed relevant to the question of foreseeability, duty or causation,” whereas no such policy was present in the other cases.

Ultimately, the Court determined that questions of fact existed which precluded summary judgment in this matter. The Court specifically noted that the timeline of enactment of the policy regarding children being supervised could be critical here—was it enacted in response to the assault incident in the after-school program? The Court noted that “the existence of the policy creates at least a question of fact regarding whether the school anticipated these types of assault. The policy itself may bear on the question of whether the assault on [the victim] was foreseeable.” The Court also noted that there were factual questions regarding whether the previous incident was similar to the one at issue here.

Further, the Court concluded that the policy could bear not only on the issue of proximate cause (due to foreseeability), but also on the issue of whether the school owed a duty to the victim student. The Court held that “the extent to which a teacher must supervise the activities of his or her students must be determined with reference to the age and inexperience of the students, their maturity, and the dangers to which they may be exposed. Here, [plaintiffs] argue that the school’s knowledge of prior incidents and its own policy demonstrates foreseeability of this type of harm, and thus creates a duty.” (internal citations omitted). The Court agreed that genuine issues of material fact remained surrounding both duty and causation, and thus reversed the grant of summary judgment.

The Court of Appeals clearly got this one right. Plaintiffs presented specific facts regarding both a policy apparently requiring supervision and a previous incident with striking similarities. This evidence was more than enough to create a question of fact regarding foreseeability, and thus summary judgment was inappropriate here.