Day on Torts
In K.G.R. v. Union City School District, No. W2016-01056-COA-R9-CV (Tenn. Ct. App. Dec. 14, 2016), the Court of Appeals overturned a denial of summary judgment, determining that the incident that occurred was not foreseeable and that defendant had no duty to protect the minor plaintiff from a sexual assault.
Plaintiff was a sixth grade student enrolled in the special education program at defendant school. Near the end of the school year in 2012, a student told the special education teacher that plaintiff and another boy were in a bathroom stall together. The teacher went to the bathroom, where she found the other student leaving the bathroom, and eventually took both boys to the principal’s office. During an interview of plaintiff, he alleged that the other student had sexually assaulted him in the bathroom.
Plaintiff’s parents brought this negligence action, alleging that the school had a duty to protect plaintiff. The school filed a motion for summary judgment, arguing that “the acts against [plaintiff] were not foreseeable.” Three weeks before the incident, plaintiff’s mother wrote a letter to the school principal regarding her concerns that plaintiff was being bullied, specifically naming two students as the perpetrators (neither of which was the student involved in the assault), and stating that plaintiff “was being punched by these students.” According to the mother’s testimony, “she wrote the letter because other students were stealing [plaintiff’s] pencils, picking on him, and calling him names.”
Based on this letter, the trial court denied defendant’s motion for summary judgment, finding that “a dispute of fact exist[ed] as to whether the school was on notice by virtue of the Mother’s earlier letter and therefore whether or not the incident was foreseeable.” On appeal, the Court overturned this ruling and held that defendant school was entitled to summary judgment.
In its analysis, the Court pointed out that in Tennessee, “[i]n order to determine whether a duty is owed in a particular circumstance, courts must first establish that the risk is foreseeable, and, if so, must then apply a balancing test based on principles of fairness to identify whether the risk was unreasonable.” (internal citation omitted). “The pertinent question is whether there was any showing from which it can be said that the defendants reasonably knew or should have known of the probability of an occurrence such as the one which caused the plaintiff’s injuries.” (internal citation omitted).When the incident involves student misconduct, “Tennessee follows a more conservative foreseeability approach [than some other jurisdictions] that student misconduct is not to be anticipated absent proof of prior misconduct.” (quoting Mason ex rel. Mason v. Metro. Gov’t of Nashville & Davidson Cty., 189 S.W. 3d 217 (Tenn. Ct. App. 2005).
In determining that summary judgment should have been granted for defendant school, the Court pointed to the evidence that this was “an isolated incident, and that nothing like it had ever occurred at Union City Middle School, either between these two students or any other students.” The Court noted that plaintiff stated during his interview that his had not happened before, and that he had not told anyone. Further, school officials testified that neither student involved “had ever exhibited any need for assistance or supervision in the bathroom,” and that the alleged abuser had not previously been sent to the principal’s office for anything. The Court rejected plaintiff’s argument that the letter sent to the school by plaintiff’s mother affected the foreseeability of this incident. The Court reasoned:
Mother’s letter states that [plaintiff] was being bullied and punched; however, there was no allegation or implication that [plaintiff] was being assaulted sexually or was the likely target of a sexual assault by Q.B. or any other student. While we concede that the foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, if the general manner in which the injury occurred could have been foreseen, or should have been foreseen through the exercise of reasonable diligence, the foreseeability requirement will be met. …Even giving every reasonable inference in favor of the [plaintiffs] the record simply does not support a finding that a sexual assault against [plaintiff] was foreseeable. Contrary to Mother’s contention, her letter provided [defendant] school district no notice that [plaintiff] had been either the victim of a sexual assault at school, or was likely to be the victim of a sexual assault by Q.B. or any other student. A sexual assault is very different in nature than the bullying and other behavior complained of in her letter. Because the incident was not foreseeable, we conclude that [defendant] did not have a duty to protect [plaintiff] form this type of assault.
This case presents an analysis of foreseeability and duty in the context of schools being held responsible for student behavior, an issue that seems to be a close call in many cases and that varies greatly depending on the facts developed and presented by counsel. Here, the Court ultimately held that evidence that this specific child was being bullied and that the school had been warned about it was not enough to prove foreseeability for a sexual assault. The Court deemed bullying and sexual assault “very different,” finding that knowledge of one did not lead to foreseeability of the other. Interestingly, in June 2016, the Court of Appeals overturned summary judgment for a school in a school sexual assault case. In Richardson v. Trenton Special School Dist., No. W2015-01608-COA-R3-CV (Tenn. Ct. App. June 27, 2016), a kindergartener was assaulted by a classmate during school. The trial court granted summary judgment on the basis that the assault was not foreseeable, but the Court of Appeals overturned that finding based on evidence that, before the incident in question, the same school had had a sexual assault occur between first or second graders during the after-school care program. In the Richardson case the Court found the incident potentially foreseeable based on the existence of a prior sexual assault in the school, even though the prior incident occurred in a different setting and context.
Considering these cases together, it is unclear what evidence plaintiff in the present matter could have presented to get over the foreseeability hurdle. Would it have been enough if the mother’s letter had named the eventual assaulter as one of the bullies? Or if some sexual assault had occurred at this school before, even if unrelated to these particular students? Based on the cases we have seen, if you are representing a plaintiff in this type of case, offering evidence about both the perpetrator’s previous behavior and the existence of any previous assaults at the school seems crucial.
One last point. The Court of Appeals said that “[a] sexual assault is very different in nature than the bullying and other behavior complained of in her letter.” The “other behavior” included punching, which is physical violence. Are criminal acts that include sexual conduct crimes of physical violence or sex acts between non-consenting people? I think many people would say such acts are crimes of physical violence. If that is so, aren’t acts of punching a person something that should put a school on notice that the victim could be subjected to another act of act of physical violence, which might include sexual assault? Of course, the students who punched the victim did not sexually assault him, so the plaintiff still had that hurdle to overcome, but I wish the Court had not included the sentence “[a] sexual assault is very different in nature than the bullying and other behavior complained of ” in its opinion.