PLAINTIFFS' TRIAL BRIEF
filed with the SUPERIOR COURT, FRANKLIN COUNTY, WASHINGTON
Jan. 22nd 2003
HIGH, Plaintiffs, vs.
PASCO SCHOOL DISTRICT, Defendants.
TRIAL ISSUES - # 11
Should the jury be instructed
on forseeability as an issue of causation as well as an issue in the determination
of the school district's duty?
Instructing the jury on forseeability as an
issue of causation as well as an issue in determining duty is improper.
The District pleaded as an affirmative defense that Jared
High's act of firing a gun at his own head was an intervening cause which
supersedes any negligence of the District. That defense, and any
separate jury instruction on intervening cause, are inappropriate to the
facts and law of this case. Failure to take reasonable steps to control
the conduct of a violent bully gives rise to a risk that the bully will
attack another student and cause physical, emotional and psychological
harm. Both sides agree that Jared High committed suicide from developing
a major depressive condition, an accepted psychological diagnosis.
Suicide is certainly an extreme consequence of emotional and psychological
harm, but it is by no means unforeseeable or outside the general risk of
harm created by an ineffectively disciplined, aggressive bully.
An intervening act will supersede the defendant's negligence
only when it is so highly extraordinary or unexpected that it can be said
to fall outside the realm of reasonable forseeability as a matter of law.
v. Leon, 3 Wn.App. 916, 478 P.2d 778 (1970). Generally, an intervening
cause is superseding only where (1) it brings about a different type of
harm than otherwise would have resulted from the defendant's conduct, or
(2) operates independently of the situation created by the defendant's
conduct. Campbell v. ITT Imperial Corp., 107 Wn.2d 807, 813, 733
P.2d 969 973 (1987). An act does not become unforeseeable simply because
it is an intentional or even criminal act on the part of a third party.
v. Ford's Prairie School Dist. No. 11 of Lewis County, 3 Wn.2d 475,
484-85, 101 P.2d 345, 350 (1940), quoting Restatement of Torts, §
449, at 1202.
The central issue in the intervening, superseding cause
analysis is forseeability. The District is expected to argue at trial,
as it did on summary judgment, that Jared High's act of suicide was not
foreseeable by the District. Such argument is improper. It is clear that
the test is whether the general risk of harm was foreseeable, not the precise
chain of events which lead to the ultimate occurrence. The pattern jury
instruction on intervening concludes with the following paragraph:
It is not necessary that the sequence of events
or the particular resultant occurrence be foreseeable. It is only necessary
that the resultant harm fall within the general field of danger which the
defendant should reasonably have anticipated.
One of Washington's leading cases on intervening, superseding
cause analysis is McLeod v. Grant County School Dist. No. 128, 42
Wn.2d 316, 321, 255 P.2d 360 (1953), discussed in the summary judgment
briefing. See, Plaintiffs Memorandum in Opposition to Motion for summary
Judgment, p. 25. In that case, during noon recess, several school boys
carried the twelve year old plaintiff into a darkened room, where she was
forcibly raped by two of the group of boys. She cried out for help, as
Jared High, but no adult was around to hear her plea. Her legal complaint
was dismissed by the trial court. On appeal, the school district's defense
was that the cause of her harm was the intervening acts of the boys who
raped the plaintiff. In reversing and remanding for trial, the Supreme
Court analyzed the issues:
It seems to us, however, that counsel unjustifiably
restrict the issue when they ask us to focus attention upon the specific
type of incident which here occurred-forcible rape. Whether forseeability
is being considered from the standpoint of negligence or proximate cause,
the pertinent inquiry is not whether the actual harm was of a danger which
was expectable. Rather, the question is whether the actual harm fell within
a general field of danger which should have been anticipated.
(McLeod, at 321)
The court then quoted from Professor Harper, Law of Torts,
from a prior decision:
It is literally true that there is no liability
for damage that falls entirely outside the general threat of harm which
made the conduct of the actor negligent. The sequence of events, of course,
need not be foreseeable. The manner in which the risk culminates in
harm may be unusual, improbable and highly un-expectable, from the standpoint
of the actor at the time of his conduct. And yet, if the harm suffered
falls within the general danger area, there may be liability...
In this matter, the issue of forseeability is an element
of whether the District owed a duty to Jared High to prevent the assault
by Andrew S. The question is whether physical and emotional injury
are within the general risk of harm from the failure of a school district
to take reasonable disciplinary steps to prevent an aggressive and violent
student from attacking other students. To instruct the jury on the same
subject again, as an issue of proximate causation, is misleading and confusing,
and gives undue emphasis to that element of the case. It also invites improper
argument by the defense that the District had no reason to suspect that
Jared High, in particular, would commit suicide.
RESPECTFULLY SUBMITTED this 22nd day of January, 2003.
By: Jay E. Leipham, WSBA # 4961
(Attorney for Brenda High)