* James Hopkins, Jr., Appellant V. Seattle Public School District, Respondent

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STATE OF V/Ai;!'T;*T :-
2016 JUL 21 	AH Ih 58
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JAMES HOPKINS, JR.,
Appellant, 	)
V. 	/
SEATTLE PUBLIC SCHOOL DISTRICT )
NO. 1,
Respondent. 	)
No. 73147-5-1
ORDER TO PUBLISH
At the direction of a majority of the panel in accord with RAP 12.3(d), the opinion
issued on July 18, 2016 in the above case shall be published in the Washington
Appellate Reports.
Now, therefore, it is hereby
ORDERED that at the direction of a majority of the panel, the opinion issued on
July 18, 2016 in the above case shall be published in the Washington Appellate
Reports. 	U 	^
is 	»\	DATED this 	day of 	July 	., 2016.
FOR THE COURT:
Judge
 	 	 	 	 	 	 	 	 	 	 	 	 	

Or T
20IGJJL 13 	Ari 	;-Su
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JAMES HOPKINS, JR.,
Appellant,
v.
SEATTLE PUBLIC SCHOOL DISTRICT
NO. 1.
Respondent.
No. 73147-5-1
UNPUBLISHED OPINION
FILED: July 18, 2016
Schindler, J. — It is well established that a school district has a special
relationship and a duty to use reasonable care to protect students in its custody from
foreseeable harm. 	James Hopkins Jr. appeals the verdict in favor of Seattle Public
School District No. 1 (School District). 	Hopkins contends the trial court erred in refusing
to instruct the jury on the special relationship and duty of the School District. 	Because
the court's instructions allowed the jury to apply an ordinary negligence standard without
regard to the special relationship and duty of the School District, we reverse the
judgment on the verdict, and remand for a new trial.
FACTS
In 2006, James Hopkins Jr. and E.E. were students at Aki Kurose Middle School.
E.E. attended special education classes except for physical education (PE). 	On June 7,
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/2
2006, E.E. and Hopkins were in the boys' locker room after PE class. 	E.E. punched
Hopkins in the back of his head. 	Hopkins fell to the ground and broke his jaw.
On November 1, 2013, Hopkins filed a lawsuit against Seattle School District No.
1 (School District). 	Hopkins asserted claims for negligence and negligent supervision.
The complaint alleged the School District knew E.E. "was a danger to himselfand/or
others." The complaint alleged the School District "owed a duty to Hopkins to supervise
its employees to ensure Hopkins would be free from physical harm while under the
custody and control" of the School District. The School District denied the allegations
and asserted a number of affirmative defenses.
In his motion for summary judgment on liability, Hopkins cited the leading case
on the special relationship and the duty the School District owed to protect him from
foreseeable harm, McLeod v. Grant County School District No. 128. 42 Wn.2d 316, 255
P.2d 360 (1953). 	Hopkins argued the undisputed facts showed the School District
breached the duty to protect him from foreseeable harm.
The School District conceded that "[w]ith respect to the duty element, there is no
dispute" that a school district has the duty to exercise reasonable care when supervising
students in its custody. 	The School District argued there were material questions of fact
regarding foreseeability. 	The court denied summary judgment on liability.
At the beginning of trial, the court described the claims to the jury:
The plaintiff, Mr. James Hopkins, whom you were introduced to,
claims that the Seattle Public School is at fault for injuries he sustained as
a result of a June 2006 assault by a fellow middle school student whose
initials are E.E. The plaintiff alleges Seattle Public School District owed a
duty of reasonable care to protect him and breached this duty by failing to
prevent E.E. from assaulting him in June 2006. 	He claims this breach of
duty was a cause of the June 2006 assault and his injury.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/3
Defendant public school district denies it breached a duty to use
reasonable care to prevent students — student-to-student assaults.
Seattle Public School District further denies that its alleged actions or
failures to act caused the assault or plaintiffs injury. Seattle Public School
District also denies the nature and extent of damages plaintiff claims were
caused by the assault.
In addition, Seattle Public School District claims that the plaintiff
was contributorially negligent in provoking the assault and by failing to
mitigate or reduce his damages, and that the assailant, known by the
initials E.E., was the proximate cause of plaintiffs injury. 	The plaintiff
denies these claims.
In opening statement, Hopkins' attorney told the jury: "The school district has an
obligation to protect all students from foreseeable harm." The attorney asserted the
School District "was negligent by failing to supervise a special ed kid" they knew was
likely to assault other students and in failing to protect Hopkins from the attack.
The School District told the jury that it exercised reasonable care in supervising
E.E. and could not have prevented the spontaneous and impulsive assault that was
provoked by Hopkins.
Near the end of trial, the parties addressed the proposed jury instructions.
Hopkins' attorney objected to the instructions proposed by the School District
because the instructions did not include an instruction on the special relationship and
duty the School District owed to students or foreseeability. 	Hopkins argued the court
should give the instructions he proposed on the duty of the School District to exercise
reasonable care to prevent foreseeable harm. 	Hopkins proposed giving the following
instructions:
Instruction 8:
A school official stands in the place of a parent when the student is
in the school's custody. The placement of children under a school's
custody and control gives rise to a duty on the part of the school to
exercise ordinary care to protect students in its custody from reasonably
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/4
anticipated dangers, including from the intentional or criminal conduct of
third parties.
Instruction 9:
Negligence is the failure to exercise ordinary care. 	Ordinary care is
that degree of care which an ordinarily careful and prudent person would
exercise under the same or similar circumstances or conditions. A school
district fails to exercise ordinary care to protect students if it fails to
anticipate dangers that may reasonably be anticipated or to take
reasonable precautions to prevent the harm from occurring.
Instruction 10:
Whether a risk of harm is reasonably foreseeable under the same
or similar circumstances depends upon the particular defendant's
characteristics and experience. 	Where the disturbed, aggressive nature of
a child is known to school authorities, proper supervision requires the
taking of specific, appropriate procedures for the protection of other
children from the potential for harm caused by such behavior.
The School District attorney objected to Hopkins' proposed instructions as incorrect,
misleading, and argumentative.
The School District asserted the pattern instructions based on 6 Washington
Practice: Washington Pattern Jury Instructions: Civil (6th ed. 2012) (WPI) accurately
stated the "duty is to exercise ordinary care, to reasonably supervise students within its
custody. That's the duty at issue."1 	The School District argued the court should give its
proposed instructions including the WPI on negligence and ordinary care:
Instruction 8:
Negligence is the failure to exercise ordinary care. 	It is the doing of
some act that a reasonably careful person would not do under the same or
similar circumstances or the failure to do some act that a reasonably
careful person would have done under the same or similar circumstances.
See WPI 10.01, at 124. 	Instruction 9: "Ordinary care means the care a reasonably
Internal quotation marks omitted.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/5
careful person would exercise under the same or similar circumstances." See WPI
10.02, at 126.
Hopkins did not object to giving the WPI on ordinary care but argued it was
"critical" to give his proposed jury instructions on the special relationship and duty of the
School District.
This language is taken from the cases that are cited. This is about
the special relationship. And that's what this case is all about — I mean,
that's a critical piece to Plaintiffs case is that when Mr. Hopkins stepped
out of — off the bus or stepped onto the bus out of his family home and
then was in the school, he had a relationship with the school in — that's
akin under the law as between him and his parents. 	Uh, that's absolutely
supported in the law. And that relationship, gives ri[s]e to the — to a
special obligation to — from the school to protect him.
. .. And I think it's very important for the Courtto instruct the jury on
this special relationship that Mr. Hopkins had and the obligations that arise
on the school because of that.
The jury needs to understand the special relationship between the
school and its students. 	And I think it's appropriate to explain what
negligence and ordinary care means in the context of that school. 	I think
that's another very important part of it.
The next day, the court provided the parties with a copy of the court's proposed
jury instructions. 	The court's proposed instructions included the WPI on negligence and
ordinary care.2 The court's proposed instructions did not include an instruction on the
special relationship and duty of the School District to protect students in its custody or
on foreseeability.
2 In addition to WPI 10.01 and 10.02, the court also included an instruction based on WP112.07.
Every person has the right to assume that others will exercise ordinary care and
comply with the law and a person has a right to proceed on such assumption until he or
she knows, or in the exercise of ordinary care should know, to the contrary.
See WPI 12.07, at 159.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/6
Hopkins filed a memorandum objecting to the failure of the court to include a jury
instruction on the duty the School District owed to a student and on foreseeability.
Hopkins argued it was error for the court to refuse to instruct the jury on the duty of the
School District to protect a student from foreseeable harm.
When trial reconvened, the parties addressed the court's proposed instructions.
The School District argued a school has the duty of ordinary care and a separate
instruction on the special relationship was unnecessary.
[W]hat the cases say is that school districts have a duty of ordinary care to
their students. The reason why they have that duty of ordinary care is
because of this special relationship. Therefore, it's not necessary to
instruct the jury that, yeah, they have a special relationship. That's just
the [basis] for whether it's the duty of ordinary care.
Hopkins objected to the court's instructions. 	Hopkins argued the court had to
instruct the jury on the duty of the School District and foreseeability.
This is not a cookie cutter case. 	This involved misconduct of an
intentional actor, and it involves a school district that has a special
relationship and obligation to Mr. Hopkins. 	I believe it would be error for
the Court not to instruct the jury on the specific duty owed by the school
district and provide some instruction on what the duty means when it
pertains to intentional acts or misconduct of third parties.
The court stated it refused to give Hopkins' proposed instructions on the duty of
the School District and foreseeability because the instructions contained language that
was argumentative and "inflammatory."
Hopkins reiterated the failure of the court to give an instruction on the duty of the
School District and foreseeability would constitute legal error and prevent him from
arguing his theory of the case.
I believe it would be error for this Court to not instruct on the specific duty
that's owed by [a] school district. At a minimum, there has to be some
kind of instruction that follows the . . . McLeod court....
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/7
We cannot argue our case without some kind of instruction about
that. 	I don't see how this is included in the plain negligence standard.
Again, this is not a cookie cutter case.
The court noted Hopkins' objection but refused to give an additional instruction
on duty or foreseeability. 	The court ruled Hopkins' theory "can be argued under the
instructions that have been given."
By special verdict, the jury found the School District was not negligent. The court
entered judgment on the verdict and dismissed the lawsuit.
ANALYSIS
Hopkins contends the court erred in failing to instruct the jury on the special
relationship and duty of the School District to use reasonable care to protect a student
in its custody from foreseeable harm. The School District asserts the trial court did not
err in refusing to give the jury instructions proposed by Hopkins. The School District
argues the jury instructions proposed by Hopkins were argumentative, misleading, and
incorrect.
We review the decision not to give a jury instruction for abuse of discretion.
Feroen v. Sestero, 182 Wn.2d 794, 802, 346 P.3d 708 (2015). A trial court need not
" 'give a requested instruction that is erroneous in any respect.'" Crossen v. Skagit
County, 100 Wn.2d 355, 360, 669 P.2d 1244 (1983) (quoting Vooel v. Alaska S.S. Co.,
69 Wn.2d 497, 503, 419 P.2d 141 (1966)).
However, even if Hopkins' proposed instructions contained more language than
was appropriate, we conclude Hopkins preserved his right to challenge the instructions
given as legally erroneous. The undisputed record establishes Hopkins objected not
only to the refusal to give his proposed instructions, but also to the failure of the court to
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/8
give a jury instruction on the duty of the School District to protect a student from
foreseeable harm. 	See Washburn v. City of Federal Way. 178 Wn.2d 732, 748, 310
P.3d 1275 (2013) (Because the City objected not only to the refusal to give its public
duty doctrine instruction but also objected to giving proposed instructions, the objection
was preserved.); Joyce v. Dep'tof Corr.. 155 Wn.2d 306, 325, 119 P.3d 825 (2005)
(The Department properly objected to legally erroneous jury instructions that prevented
the Department from arguing its theory of the case.).
The purpose of CR 51(f) is to apprise the trial judge of the nature and substance
of the objection. Crossen. 100 Wn.2d at 358. The record shows Hopkins repeatedly
cited the leading Washington Supreme Court case on the special relationship and duty
of the School District to argue that the court must give an instruction on the duty of the
School District and foreseeability.
School districts owe a duty to protect the pupils in its custody from
dangers reasonably to be anticipated—including the foreseeable
misconduct of third-parties, like E.E. Under well-established principles,
when a pupil attends a school, he or she is subject to the rules and
discipline ofthe school, and the protective custody of the teachers is
substituted for that of the parent[ "to protect the pupils in its custody from
dangers reasonably to be anticipated."]. . . McLeod. 42 Wn.2d at 319.
Hopkins repeatedly objected to the failure to give a jury instruction on "the specific duty
owed by a public [school] to its student, or the school's duty to protect Mr. Hopkins from
the foreseeable misconduct of third parties" as legal error.
We conclude the record establishes Hopkins clearly and unequivocally stated the
failure to instruct the jury on the duty ofthe School District and foreseeability was an
error of law.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/9
We review legal errors in jury instructions de novo. 	Fergen. 182 Wn.2d at 803.
Jury instructions are sufficient if the instructions are supported by the evidence; allow
each party to argue its theory of the case; are not misleading; and when read as a
whole, properly inform the trier of fact of the applicable law. 	Fergen. 182 Wn.2d at 803;
Anfinson v. FedEx Ground Package Svs.. Inc.. 174 Wn.2d 851, 860, 281 P.3d 289
(2012). 	If any of these elements is absent, the instruction is erroneous. Anfinson. 174
Wn.2d at 860. 	If the instruction misstates the law, prejudice is presumed and is grounds
for reversal unless the error was harmless. 	Fergen, 182 Wn.2d at 803.
Well established case law imposes a duty on a school district to exercise
reasonable care to protect students in its custody from foreseeable harm. 	McLeod. 42
Wn.2d at 320; Christensen v. Roval Sch. Dist. No. 160.156 Wn.2d 62, 70, 124 P.3d
283 (2005).
McLeod identifies two factors that determine the scope of the legal duty of a
school district. 	First, there is the special relationship where the "protective custody of
teachers is mandatorily substituted for that of the parent." McLeod. 42 Wn.2d at 319.
The relationship here in question is that of school district and
school child. 	It is not a voluntary relationship. The child is compelled to
attend school. 	He must yield obedience to school rules and discipline
formulated and enforced pursuant to statute. .. . The result is that the
protective custody of teachers is mandatorily substituted for that of the
parent.
The duty which this relationship places upon the school district has
been stated in the Briscoe case ... as follows:
"As a correlative of this right on the part of a school district to
enforce, as against the pupils, rules and regulations prescribed by the
state board of education and the superintendent of public instruction, a
duty is imposed by law on the school district to take certain precautions to
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/10
protect the pupils in its custody from dangers reasonably to be
anticipated."
McLeod, 42 Wn.2d at 319-20 (quoting Briscoe v. Sch. Dist. No. 123. 32 Wn.2d 353,
362, 201 P.2d 697 (1949)). Second, there is "the duty of a school district... to
anticipate dangers which may reasonably be anticipated, and to then take precautions
to protect the pupils in its custody from such dangers." McLeod. 42 Wn.2d at 320. A
school district must "exercise such care as an ordinarily reasonable and prudent person
would exercise under the same or similar circumstances." 	Briscoe, 32 Wn.2d at 362.
Below and on appeal, the School District relies on Kok v. Tacoma School District
No. 10, 179 Wn. App. 10, 317 P.3d 481 (2013), to argue the trial court properly
instructed the jury on the duty of ordinary care to protect students from harm. The
School District claims an instruction on the obligation to exercise reasonable care to
protect students from harm is an unnecessary elaboration of the duty of ordinary care.
We reject the argument that an instruction on the well established legal scope of
the duty of a school district to exercise reasonable care to protect students from
foreseeable harm is unnecessary. 	Nor does Kok support the argument that the court
properly instructed the jury using the pattern WPI on negligence and the duty of ordinary
care.
McLeod, not Kok, is the leading authority on the duty of a school district. The
court in Kok addressed whether there was a genuine issue of material fact on
foreseeability. 	Although foreseeability is "generally a question for the jury," the court
concluded reasonable minds could only conclude the student's acts were "not
foreseeable by the District," and affirmed summary judgment dismissal of the lawsuit.
Kok, 179 Wn. App. at 17-18.
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/11
Without citation to authority, the School District argues a jury should not be
instructed on foreseeability. That may be true with respect to proximate cause. See
WP115.01, at 191. It is not true with respect to duty. 	McLeod makes clear that the duty
of a school district to use reasonable care extends only to such risks of harm as are
foreseeable. 	McLeod. 42 Wn.2d at 320; see also J.N, v. Bellingham Sch. Dist. No. 501.
74 Wn. App. 49, 57, 871 P.2d 1106 (1994). 	To establish foreseeability, the harm
sustained must be within a "general field of danger" that should have been anticipated.
McLeod. 42 Wn.2d at 321. Acts are foreseeable "only if the district knew or in the
exercise of reasonable care should have known of the risk" that resulted in the harm.
Peckv. Siau. 65 Wn. App. 285, 293, 827 P.2d 1108 (1992). Thus, in this case, it was
essential to instruct the jury on foreseeability.
We hold the court erred in failing to give jury instructions on the special
relationship and duty of the School District to exercise reasonable care to protect
students from foreseeable harm. 	Because the instructions given allowed the jury to
apply an ordinary negligence standard without regard to the special relationship and
duty of the School District, the error was not harmless and prevented Hopkins from
arguing his theory of the case. We reverse and remand for a new trial.
Because the dispute over giving a jury instruction on the obligation of the School
District to educate a student with disabilities and on contributory negligence will likely
arise on remand, we briefly address those instructions.
The propriety of giving a jury instruction is governed by the facts of the case.
Fergen. 182 Wn.2d at 803.
11
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/12
The court instructed the jury on the federal and state law requirements to
educate special needs students. 	Jury instruction 17 states:
Both federal and state laws require public school districts to provide
appropriate education to students with disabilities. 	Both federal and state
laws also require that, to the maximum extent appropriate, public school
districts must educate children with disabilities in the general education
environment.
Hopkins argues the instruction is an improper comment on the evidence and is
irrelevant. We disagree. The instruction was not an unconstitutional comment on the
evidence. See State v. Brush. 183 Wn.2d 550, 565, 353 P.3d 213 (2015); State v.
Becker. 132 Wnh.2d 54, 64, 935 P.2d 1321 (1997). The instruction correctly states the
obligation of a school district under state and federal law and is relevant to whether the
School District exercised reasonable care.
Hopkins contends that as a matter of law, the Washington Supreme Court
decision in Christensen bars a school district from asserting contributory negligence.3
Below, the parties debated the applicability of Christensen. 	In Christensen. the court
held that as a matter of public policy, "a defense of contributory fault should not be
available to the perpetrator of sexual abuse or to a third party that is in a position to
control the perpetrator." Christensen. 156 Wn.2d at 70. The opinion makes clear the
court is addressing only "a civil action against a school district... for sexual abuse" by
a teacher; "[t]he act of sexual abuse is key here." Christensen, 156 Wn.2d at 71-72, 69.
Christensen does not support the argument that as a matter of law, a school
district may never assert contributory negligence. 	See Briscoe, 32 Wn.2d at 366. On
the other hand, on appeal Hopkins cites a case, Greooire v. Citv of Oak Harbor, 170
3 Jury instruction 13 states: "Contributory negligence is negligence on the partofa person
claiming injury or damage that is a proximate cause ofthe injury or damage claimed."
12
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73147-5-1/13
Wn.2d 628, 244 P.3d 924 (2010), which may arguably cut in the opposite direction in
this case. We leave it to the trial court on remand to reconcile whether on the facts
developed at trial, an instruction on contributory negligence should be given.
We reverse the judgment on the verdict and remand for a new trial.
Qo. 	^ 	&,
WE CONCUR:
^7,X 	%fcJCel.
13